The current regulations at § 275.12(f)(2) state, “If the reviewer determines that food stamp allotments were either overissued or underissued to eligible households in the sample month, in an amount exceeding $25.00, the occurrence and the amount of the error shall be coded and reported.” In practice, when conducting both State and Federal QC reviews any overissuances or underissuances found in the amount of $25.00 or less are not included as an error in the calculation of that fiscal year's (FY) error rates. This $25.00 or less error is also known as the error tolerance threshold (the threshold). This $25.00 threshold, however, does not excuse any State from their responsibility for following procedures found at § 275.16(c) regarding corrective action for all errors found in QC cases.

On February 17, 2009, the President signed Public Law 111-5, the American Recovery and Reinvestment Act of 2009 (ARRA). Title I, Section 101(b)(5) of Public Law 111-5, indicated the Agriculture Secretary shall, “set the tolerance level for excluding small errors for the purposes of section 16(c) of the Food and Nutrition Act of 2008 (7 U.S.C. 2025(c)) at $50.00 through September 30, 2009.” This temporary threshold increase was tied to the increase in the benefit amount also provided by ARRA. In short, this meant there was a temporary threshold increase from $25.00 to $50.00 for QC errors from April 2009 through September 2009. According to FNS's calculations, we estimate that the ARRA's provision excluding any errors between $25.00 and $50.00 from the calculation decreased the 2009 combined Payment Error Rate (PER) by 15 percent. The total combined Payment Error Rate (PER) decreased from FY 2008's 5.01 percent to 4.36 percent.

The ARRA provision concerning the QC threshold expired September 30, 2009. The threshold for the FY 2010 QC review period reverted to $25.00. The increased benefit allotment, however, remains in place. The Department believes that the State agencies should continue to benefit from the increased threshold amount of $50.00 to offset the increased benefit amounts. Therefore, in this rulemaking, the Department is raising the QC tolerance threshold of $25.00 to $50.00 to make the temporary ARRA change permanent.

Prior experience with the provisions of this rule under the ARRA demonstrates that they contribute to a significant reduction in the rate of improper payments in SNAP. SNAP is identified by the Office of Management and Budget (OMB) as a high risk program for improper payments. Reducing the payment error rate is a priority for both USDA and OMB. To improve business efficiency, agencies must prioritize those areas that have the most potential to improve payment accuracy and reduce improper payments. This rulemaking supports that goal by focusing on errors that are the most economically efficient to correct. The provisions of this rule will improve the data available at the Federal level allowing for further analysis of the root causes of payment errors. The Department's payment accuracy team will be better able to focus on the largest and most problematic errors and then work with States on additional cost efficient ways to improve the Administration's goals to reduce improper payments.

The Department is also requiring all error amounts found shall be coded and reported by the State Agencies on FNS 380-1, OMB 0584-0299, Review Schedule for SNAP QC Reviews, or as directed by FNS. Currently, State Agencies do not have to code and report QC errors for cases with overissuances or underissuances of $25.00 or below since they are not counted as QC errors when FNS calculates the National QC Error Rates at the end of each review year. However, during the temporary ARRA change from $25.00 to $50.00, States were required to code and report all errors between $25.00 and $50.00, which became valuable in conducting State corrective action as well as determining the impact of the threshold on the State and National QC error rates. The Department has determined that it would be valuable to know this information for all variances under $50.00, even though such variances are not included in the PER calculation. The information will be used to assist in corrective action. Therefore, the Department is making a change to current coding and reporting procedures for the FNS 380-1 to require the coding and reporting of any variances that directly contribute to the error determination, even those below the $50.00 threshold. This coding and reporting requirement will not affect the method of calculation for the underissuance error rate, overissuance error rate, and the combined PER, since the calculation will continue to exclude all errors equal to or below the proposed threshold change of $50.00.

State Agencies will continue to be responsible for taking corrective action for all errors found in QC cases, in accordance with the provisions of § 275.16(c).

FNS has determined that this rule is appropriate for direct final rulemaking because we believe this amendment to be noncontroversial and we anticipate no significant adverse comments. We believe this rule to be noncontroversial as the State agencies which administer SNAP have already expressed their unequivocal support for the policy implemented by this rule. The amendment contained in this rule was previously in effect under the ARRA for a six month period in fiscal year 2009. As such, the State agencies have significant experience with the operational implications of this amendment. We anticipate no significant adverse comments to be submitted as public comments to this rule as FNS did not, in the past, receive adverse comments as a result of the previous amendment to the threshold when it was raised from $5.00 to $25.00. In addition, State agencies have repeatedly expressed desire for the ARRA QC provisions to be reinstated on a permanent basis both individually and through their representative association, the American Public Human Services Association (APHSA). This direct final rulemaking is consistent with the State agencies' requests.

This rule is effective January 3, 2012 unless the Department receives written significant adverse comments on or before December 1, 2011. FNS invites public comment on this direct final rule. If significant adverse comments within the scope of the rulemaking are received, the Department will publish timely notification of withdrawal of this rule in the Federal Register . A significant adverse comment is defined as one where the comment explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change.

Although the rule is not effective until January 3, 2012, State agencies are required to apply the raised threshold for the entire FY 2012 QC review period.

Executive Orders 12866 and 13563 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 not significant under section 3(f) of Executive Order 12866.

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, Audrey Rowe, FNS Administrator, has certified that this rule would not have a significant impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.

This rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The Supplemental Nutrition Assistance Program (SNAP) is listed in the Catalog of Federal Domestic Assistance Programs under 10.561. For the reasons set forth in the final rule in 7 CFR part 3015, subpart V, and related Notice (48 FR 29115, June 24, 1983), this program is included in the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.

USDA will undertake, within 6 months after this rule becomes effective, a series of Tribal consultation sessions to gain input by elected Tribal officials or their designees concerning the impact of this rule on Tribal governments, communities and individuals. These sessions will establish a baseline of consultation for future actions, should any be necessary, regarding this rule. Reports from these sessions for consultation will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning this rule and will provide additional venues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal leaders and their representatives concerning ways to improve this rule in Indian country.

The policies contained in this rule would not have Tribal implications that preempt Tribal law since State welfare agencies will be the most affected to the extent that they administer the SNAP.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13121. FNS has considered this rule's impact on State and local agencies and has determined that it does not have Federalism implications under E.O. 13132.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. State agencies are required to apply the raised threshold in this rule to all cases reviewed as part of the FY 2012. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.

FNS has reviewed this rule in accordance with the Department Regulation 4300-4, “Civil Rights Impact Analysis,” to identify and address any major civil rights impacts the rule might have on minorities, women, and persons with disabilities. After a careful review of the rule's intent and provisions, FNS has determined that this rule will not in any way limit or reduce the ability of protected classes of individuals to participate in SNAP. This regulation does not apply to the certification determinations made on the intended beneficiaries of the SNAP. Quality Control procedures are designed to evaluate the accuracy of the application of SNAP certification policy and therefore, the evaluation procedures do not impact protected classes or individuals.

Information collections associated with this rule have been approved under following OMB control numbers: 0584-0074, Worksheet for SNAP Quality Control Reviews (expiration date April 30, 2013), and 0584-0299 Form FNS-380-1, Quality Control Review Schedule, Form FNS-380-1 (March 31, 2013).

FNS is committed to complying with the E-Government Act, 2002, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For the reasons set forth in the preamble, 7 CFR part 275 is amended as follows:

This final rule is issued under Marketing Agreement No. 130 and Marketing Order No. 958, both as amended (7 CFR part 958), regulating the handling of onions grown in certain designated counties in Idaho, and Malheur County, Oregon, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

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

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

This final rule revises the handling regulation for onions handled under the order. Specifically, this rule revises the handling regulation to allow special purpose shipments of onions for the purpose of experimentation without regard to the minimum grade, size, maturity, pack, and inspection requirements of the order. The revision will give the Idaho-Eastern Oregon onion industry the opportunity to identify and develop new markets. The changes are expected to benefit producers, handlers, and consumers of onions. This rule was unanimously recommended by the Committee at a meeting on January 20, 2011.

Sections 958.42, 958.51, 958.52, and 958.60 of the order provide authority for assessment, mandatory inspection, and establishment of grade, size, quality, maturity, and pack regulations applicable to the handling of onions. Section 958.53 of the order provides authority for the issuance of special regulations, or the modification, suspension, or termination of requirements in effect pursuant to §§ 958.42, 958.52, 958.60, or any combination thereof, in order to facilitate the handling of onions for certain specified purposes.

Section 958.328 establishes minimum requirements for onions handled subject to the order. Currently, no person shall handle any lot of onions unless such onions are inspected, are at least “moderately cured”, and meet the grade, size, maturity, and pack requirements of paragraphs (a), (b), and (c). Paragraph (e) delineates specific types of special purpose shipments that are exempt from the requirements of the order. Paragraph (f) outlines the safeguards for such special purpose shipments.

The Committee recommended this revision to the handling regulations to respond to the industry's desire to have greater flexibility in indentifying and pursuing unique marketing opportunities for onions that do not conform to the requirements of the order. The concern from the onion industry is that onion producers and handlers within the order's production area are at a competitive disadvantage, relative to other onion producing regions, with respect to their ability to identify and develop new markets for non-standard onions. Adding authority to allow experimental onion shipments under the order provides handlers access to markets not previously available to them.

An example that demonstrates how the industry benefits from this final rule would be a scenario in which a handler wants to produce and ship a unique, irregularly shaped small onion ( e.g. a heart or a square shape) in order to target a newly developed niche market. Since irregular shape is a physical characteristic that does not conform to the order's grade requirements, previously such onions could not have been handled under the marketing order. However, with this exemption for experimentation the Committee can now allow the shipment of those specific type onions while still maintaining the integrity of the order. If the market for such onions increases significantly, the Committee could then incorporate changes into the handling regulations to accommodate their handling without the continued need for an exemption.

The potential for marketing opportunities like the example described above motivated the Committee to recommend modifying the handling regulation to add “experimentation” to the already established list of special purpose shipments allowed under the order. Onion shipments for experimental purposes will thus be exempt from the grade, size, maturity, pack, and inspection requirements of the handling regulation. Shipments made under the experimental exemption continue to be subject to the assessment requirement of the order, however. With this special purpose shipment provision for experimentation, handlers have greater flexibility in pursuing various types of unique marketing opportunities that were previously not available under the handling regulation.

The Committee will require handlers to request pre-approval for such experimental exemptions. Through the approval process, the Committee will be able to regulate the quantity and timing of such shipments. It is the goal of the Committee that any experimental shipments of onions will be temporary in nature. At the point that emerging experimental markets reach a sufficient volume or continue for such a length of time as to be deemed sustainable by the Committee, the Committee could then recommend changes to the handling regulation requirements to accommodate the marketing of such onions on a permanent basis.

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

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

There are approximately 35 handlers of Idaho-Eastern Oregon onions who are subject to regulation under the order and approximately 250 onion producers in the regulated area. Small agricultural service firms, which include onion handlers and receivers, are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000.

The National Agricultural Statistics Service (NASS) reported in the “Vegetables 2010 Summary”, published in January 2011, that the total F.O.B. value of onions in the regulated production area for 2010 was $133,041,000. Based on an industry estimate of 35 handlers, the average value of onions handled per handler is $3,801,000, well below the SBA threshold for defining small agricultural service firms. In addition, based on an industry estimate of 250 producers, the average F.O.B. value of onions produced in the industry is $532,164 per producer. Since the F.O.B. value is usually significantly higher than the farm gate value that the producers actually receive, most onion producers within the order's production area could be considered small agricultural producers under the SBA definition. Therefore, it can be concluded that the majority of handlers and producers of Idaho-Eastern Oregon onions may be classified as small entities as defined by the SBA.

This final rule revises § 958.328(e) of the order's handling regulation to allow special purpose shipments of onions for the purpose of experimentation without regard to the minimum grade, size, maturity, pack, and inspection requirements currently prescribed under paragraphs (a), (b), and (c) of § 958.328. The revision will allow the Idaho-Eastern Oregon onion industry to identify and develop new markets for non-standard onions that have not been previously available. The changes are expected to benefit producers, handlers, and consumers of onions.

At a meeting on January 20, 2011, the Committee discussed the impact of the recommended changes on handlers and producers in terms of increased costs. The Committee believes that, since this change exempts certain shipments of onions from regulation, this action will not add any additional requirements or costs relative to the existing regulation. Since the utilization of the special purpose shipment provision is voluntary in nature, any additional regulatory burden placed on a handler as a result of this final rule will be by their choice. The changes may, however, create opportunities for producers and handlers to develop new markets and to enhance revenues. The Committee believes that the potential benefit associated with this action outweighs any potential increase in administrative cost or regulatory burden incurred by the handler.

The Committee discussed various alternatives to adding experimental shipments to the list of special purpose shipment exemptions contained in the order's handling regulation. Some members suggested that the provision was too broad in scope and needed greater restrictions. After deliberation, the Committee concluded that it would be impossible to anticipate what might be “experimental” in the future and that affording the greatest latitude to the provision, while maintaining strict Committee oversight, was in the best interest of the industry. The Committee also considered taking no action with regard to adding an experimental shipment provision, citing the potential for abuse. After deliberation, the Committee agreed that the experimental shipment provision is needed to respond to changes in the industry and that there would be sufficient safeguards to protect the integrity of the order.

This final rule imposes additional reporting burdens on handlers who make special purpose shipments of experimental onions. This action requires the modification of two existing Committee forms and an increase in burden hours for three existing forms. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0241, “Onions Grown in Certain Designated Counties in Idaho, and Malheur County, Oregon, M.O. No. 958.” However, as a result of this action changes in those requirements are necessary and have been submitted to OMB for review.

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

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

In addition, the Committee's meeting was widely publicized throughout the onion industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the January 20, 2011, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.

A proposed rule concerning this action was published in the Federal Register on June 21, 2011 (76 FR 35997). Copies of the rule were made available to all Committee members and onion handlers. Finally, the rule was made available through the Internet by USDA and the Office of the Federal Register. A 60-day comment period ending August 22, 2011, was provided to allow interested persons to respond to the proposal. No comments were received. Accordingly, no changes will be made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Laurel May at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

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

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because handlers are already shipping onions from the 2011-2012 crop and handlers want to take advantage of the revision as soon as possible. Further, handlers are aware of this rule, which was unanimously recommended by the committee at a public meeting. Also, a 60-day comment period was provided for in the proposed rule.

For the reasons set forth in the preamble, 7 CFR part 958 is amended as follows:

This rule is issued under Marketing Order No. 984, as amended (7 CFR part 984), regulating the handling of walnuts grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California walnut handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable walnuts beginning on September 1, 2011, and continue until amended, suspended, or terminated.

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

This rule increases the assessment rate established for the Board for the 2011-12 and subsequent marketing years from $0.0174 to $0.0175 per kernelweight pound of assessable walnuts.

The California walnut marketing order provides authority for the Board, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are growers and handlers of California walnuts. They are familiar with the Board's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2010-11 and subsequent marketing years, the Board recommended, and USDA approved, an assessment rate of $0.0174 per kernelweight pound of assessable walnuts that would continue in effect from year to year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA.

The Board met on June 9, 2011, and unanimously recommended 2011-12 expenditures of $7,402,450 and an assessment rate of $0.0175 per kernelweight pound of assessable walnuts. In comparison, last year's budgeted expenditures were $6,812,000. The assessment rate of $0.0175 is $0.0001 per pound higher than the rate currently in effect. The quantity of assessable walnuts for the 2011-12 marketing year is estimated at 470,000 tons (inshell), which is 35,000 tons more than the 435,000 during the 2010-11 marketing year. At the recommended higher assessment rate of $0.0175 per kernelweight pound, the Board should collect approximately $7,402,500 in assessment income, which would be adequate to cover its 2011-12 budgeted expenses of $7,402,450.

The following table compares major budget expenditures recommended by the Board for the 2010-11 and 2011-12 marketing years:

The assessment rate recommended by the Board was derived by dividing anticipated expenses by expected shipments of California walnuts certified as merchantable. The 470,000 ton (inshell) estimate for merchantable shipments is an average of the two prior year's shipments. The Board met on June 9, 2011, and unanimously approved using a two prior years' average to formulate the 2011-12 estimate. Pursuant to § 984.51(b) of the order, this figure is converted to a merchantable kernelweight basis using a factor of 0.45 (470,000 tons × 2,000 pounds per ton × 0.45), which yields 423,000,000 kernelweight pounds. At $0.0175 per pound, the new assessment rate should generate $7,402,500 in assessment income and allow the Board to cover its expenses.

Section 984.69 of the order authorizes the Board to maintain a financial reserve of not more than two years' budgeted expenses. Excess assessment funds may be retained in the reserve or may be used temporarily to defray expenses of the subsequent marketing year, but if so used, must be made available to the handlers from whom they were collected within five months after the end of the marketing year.

The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other available information.

Although this assessment rate will be in effect for an indefinite period, the Board will continue to meet prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Board's 2011-12 budget and those for subsequent marketing years would be reviewed and, as appropriate, approved by USDA.

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

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

There are approximately 4,500 growers of California walnuts in the production area and approximately 74 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $7,000,000.

According to the 2007 Census of Agriculture, approximately 89 percent of California's walnut farms were smaller than 100 acres.

USDA's National Agricultural Statistics Service (NASS) reports that the average yield for the 2010-11 crop was 2.22 tons per acre. NASS also reported the average price received for the 2010-11 crop was $2,110 per ton.

A 100-acre farm with an average yield of 2.22 tons per acre would therefore have been expected to produce about 222 tons of walnuts during 2010-11. At $2,110 per ton, that farm's production would have had an approximate value of $468,420. Assuming that the majority of California's walnut farms are smaller than 100 acres, it could be concluded that the majority of the growers had receipts of less than $468,420 in 2010-11, which is well below the SBA threshold of $750,000. Thus, the majority of California's walnut growers would be considered small growers according to SBA's definition.

According to information supplied by the industry, approximately two-thirds of California's walnut handlers shipped merchantable walnuts valued under $7,000,000 during the 2010-11 marketing year and would therefore be considered small handlers according to the SBA definition.

This rule increases the assessment rate established for the Board and collected from handlers for the 2011-12 and subsequent marketing years from $0.0174 to $0.0175 per kernelweight pound of assessable walnuts. The Board unanimously recommended 2011-12 expenditures of $7,402,450 and an assessment rate of $0.0175 per kernelweight pound of assessable walnuts. The assessment rate of $0.0175 is $0.0001 higher than the 2010-11 rate. The quantity of assessable walnuts for the 2011-12 marketing year is estimated at 470,000 tons inshell weight, or 423,000,000 pounds kernelweight. Thus, the $0.0175 rate should provide $7,402,500 in assessment income and be adequate to meet this year's expenses. The increased assessment rate is primarily due to increased budget expenditures.

The following table compares major budget expenditures recommended by the Board for the 2010-11 and 2011-12 marketing years:

The Board reviewed and unanimously recommended 2011-12 expenditures of $7,402,450. Prior to arriving at this budget, the Board considered alternative expenditure levels but ultimately decided that the recommended levels were reasonable to properly administer the order. The assessment rate of $0.0175 per kernelweight pound of assessable walnuts was derived by dividing anticipated expenses of $7,402,450 by expected shipments of California walnuts certified as merchantable. Merchantable shipments for the year are estimated at 423,000,000 pounds, which should provide $7,402,500 in assessment income and allow the Board to cover its expenses. Unexpended funds may be retained in a financial reserve, provided that funds in the financial reserve do not exceed approximately two years' budgeted expenses. If not retained in a financial reserve, unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year, according to § 984.69 of the order.

According to NASS, the season average grower prices for the years 2009 and 2010 were $1,710 and $2,110 per ton, respectively. These prices provide a range within which the 2011-12 season average price could fall. Dividing these average grower prices by 2,000 pounds per ton provides an inshell price per pound range of $0.86 to $1.06. Dividing these inshell prices per pound by the 0.45 conversion factor (inshell to kernelweight) established in the order yields a 2011-12 price range estimate of $1.91 to $2.36 per kernelweight pound of assessable walnuts.

To calculate the percentage of grower revenue represented by the assessment rate, the assessment rate of $0.0175 per kernelweight pound is divided by the low and high estimates of the price range. The estimated assessment revenue for the 2011-12 marketing year as a percentage of total grower revenue will thus likely range between .74 and .92 percent.

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to growers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Board's meeting was widely publicized throughout the California walnut industry, and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the June 9, 2011, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178 (Walnuts Grown in California). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This final rule imposes no additional reporting or recordkeeping requirements on either small or large California walnut handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

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

A proposed rule concerning this action was published in the Federal Register on August 16, 2011 (75 FR 50703). Copies of the proposed rule were also mailed or sent via facsimile to all walnut handlers. Finally, the proposal was made available through the Internet by USDA and the Office of the Federal Register. A 30-day comment period ending on September 15, 2011, was provided for interested persons to respond to the proposal. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/MarketingOrderSmallBusinessGuide. Any questions about the compliance guide should be sent to Laurel May at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

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

Pursuant to 5 U.S.C. 553, it also found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because the 2011-12 marketing year began on September 1, 2011. Further, the marketing order requires that the rate of assessment for each marketing year apply to all assessable walnuts handled during the year; the Board needs to have sufficient funds to meet its expenses which are incurred on a continuous basis; and handlers are aware of this rule which was unanimously recommended at a public meeting. Also, a 30-day comment period was provided for in the proposed rule.

For the reasons set forth in the preamble, 7 CFR part 984 is amended as follows:

I. Background

To promote financial stability, section 165(d) of the Dodd-Frank Act requires each nonbank financial company supervised by the Board and each bank holding company with total consolidated assets of $50 billion or more (each a “covered company”) to periodically submit to the Board, the Corporation, and the Council a plan for such company's rapid and orderly resolution in the event of material financial distress or failure. That section also requires each covered company to report on the nature and extent of credit exposures of such covered company to significant bank holding companies and significant nonbank financial companies and the nature and extent of credit exposures of significant bank holding companies and significant nonbank financial companies to such covered company. 1 This final rule implements the resolution plan requirement set forth in section 165(d)(1) of the Dodd-Frank Act.

Plans filed under section 165(d)(1) will assist covered companies and regulators in conducting advance resolution planning for a covered company. As demonstrated by the Corporation's experience in failed bank resolutions, as well as the Board's and the Corporation's experience in the recent crisis, advance planning improves the efficient resolution of a covered company. Advance planning has long been a component of resiliency and recovery planning by financial companies. The resolution plan required of covered companies under this final rule will support the Corporation's planning for the exercise of its resolution authority under the Dodd-Frank Act and the Federal Deposit Insurance Act (“FDI Act”) by providing the Corporation with an understanding of the covered companies' structure and complexity as well as their resolution strategies and processes. The resolution plan required of covered companies under this final rule will also assist the Board in its supervisory efforts to ensure that covered companies operate in a manner that is both safe and sound and that does not pose risks to financial stability generally. In addition, these plans will enhance the Agencies' understanding of the U.S. operations of foreign banks and improve efforts to develop a comprehensive and coordinated resolution strategy for a cross-border firm.

The final rule requires each covered company to produce a resolution plan, or “living will,” that includes information regarding the manner and extent to which any insured depository institution affiliated with the company is adequately protected from risks arising from the activities of nonbank subsidiaries of the company; detailed descriptions of the ownership structure, assets, liabilities, and contractual obligations of the company; identification of the cross-guarantees tied to different securities; identification of major counterparties; a process for determining to whom the collateral of the company is pledged; and other information that the Board and the Corporation jointly require by rule or order. 2 The final rule requires a strategic analysis by the covered company of how it can be resolved under Title 11 of the U.S. Code (the “Bankruptcy Code”) in a way that would not pose systemic risk to the financial system. In doing so, the company must map its core business lines and critical operations to material legal entities and provide integrated analyses of its corporate structure; credit and other exposures; funding, capital, and cash flows; the domestic and foreign jurisdictions in which it operates; and its supporting information systems for core business lines and critical operations.

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 August 16, 2011 (75 FR 50706). 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 considered the comment received.

Jeanne Da Costa of DAHER SOCATA stated that there is a typographical error in the fax number for the SOCATA office located in France. Currently, the fax number listed under the ADDRESSES section and in the Related Information section is +33 (0)5 62 41 7-54. The commenter states that the correct fax number is +33 (0)5 62 41 7654 and requests the correction be made in the final rule AD action.

We agree with the commenter and have revised the final rule AD action to incorporate the correct fax number.

We reviewed the available data, including the comment received, 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.

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 FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 124 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $350 per product.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $53,940 or $435 per product.

According to the manufacturer, all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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); 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 Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (75 FR 50706, August 16, 2011), the regulatory evaluation, any comments received and other information. The street address for the Docket 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:

On August 26, 2009, we issued AD 2009-02-06 R1, Amendment 39-16015 (74 FR 45979, September 8, 2009), for certain Model 737-300, -400, and -500 series airplanes. That AD requires repetitive inspections for cracking of the 1.04-inch nominal diameter wire penetration hole in the frame and in the frame reinforcement, between stringers S-20 and S-21, on both the left and right sides of the airplane, and applicable related investigative and corrective actions. That AD resulted from reports of cracking in the frame, or in the frame and frame reinforcement, common to the 1.04-inch nominal diameter wire penetration hole intended for wire routing. We issued that AD to detect and correct cracking in the fuselage frames and frame reinforcements, which could reduce the structural capability of the frames to sustain limit loads, and result in cracking in the fuselage skin and subsequent rapid depressurization of the airplane.

Since we issued AD 2009-02-06 R1, Amendment 39-16015 (74 FR 45979, September 8, 2009), we received a report of four adjacent cracked frames at body station (BS) 500B, BS 500C, BS 500D, and BS 520 in the forward cargo compartment between S-20L and S-21L on a Model 737-300 series airplane. The cracks at BS 500B and BS 500C were completely through the frame and fail-safe chord. The BS 500B frame was also cracked on the right-hand side. The cracks were discovered when the airplane had accumulated 44,535 total flight cycles and 44,876 total flight hours—before the compliance time required by AD 2009-02-06 R1.

AD 2009-02-06 R1, Amendment 39-16015 (74 FR 45979, September 8, 2009), referred to Boeing Alert Service Bulletin 737-53A1279, dated December 18, 2007, as the appropriate source of service information for the required actions. Boeing has since revised this service bulletin. We reviewed Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, which shortens the compliance time to 30,000 total flight cycles, with a grace period of 30 or 90 days, and reduces the repetitive interval from 14,000 to 4,500 flight cycles. The procedures are unchanged from those specified in Boeing Alert Service Bulletin 737-53A1279, dated December 18, 2007.

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

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

Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

• In accordance with a method that we approve; or

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

Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, specifies compliance with the Part 4 inspection by the later of 4,500 flight cycles or 90 days—both after the date on this service bulletin. In some cases, this compliance time might occur before the Part 2 inspection. This AD (in paragraph (h)) therefore requires the Part 4 inspection within 4,500 flight cycles after accomplishment of the most recent Part 2 or Part 4 inspection, with a grace period of 90 days. We have coordinated this difference with Boeing.

For certain airplanes that have accumulated 40,000 or more total flight cycles, Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, specifies a 30-day compliance time for the Part 2 inspection. Paragraph (k)(2) of this AD extends that compliance time to 90 days for those airplanes, if the original chem.-milled fuselage skins have been replaced with solid skins. This difference has been coordinated with Boeing.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because cracking in multiple adjacent fuselage frames and frame reinforcements reduces the structural capability of the frames to sustain limit loads, and result in cracking in the fuselage skin and subsequent rapid depressurization of the airplane. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the Docket No. FAA-2011-1162 and directorate identifier 2011-NM-186-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 605 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary related investigative actions that would be required based on the results of the HFEC inspections. We have no way of determining the number of aircraft that might need this inspection:

We have received no definitive data that would enable us to provide a cost estimate for the on-condition repair or optional modification specified in this AD.

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

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

On October 6, 2011, we issued Emergency AD 2011-21-51, which requires replacing the lithium-ion main aircraft battery, Cessna part number (P/N) 9914788-1, with a Ni-Cad or a lead acid battery. This emergency AD was sent previously to all known U.S. owners and operators of these airplanes. This action was prompted by a report of a battery fire that resulted after an energized ground power unit was connected to a Cessna Model 525C airplane equipped with a lithium-ion battery, Cessna P/N 9914788-1, as the main aircraft battery. This condition, if not corrected, could result in an aircraft fire.

We reviewed Cessna Citation Service Bulletin SB525C-24-05, dated September 29, 2011. The service information describes procedures for replacing lithium-ion main aircraft batteries, Cessna P/N 9914788-1, with Ni-Cad or lead acid batteries.

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

This AD requires accomplishing the actions specified in the service information described previously.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of a battery fire that resulted after an energized ground power unit was connected to one of the affected airplanes equipped with a certain lithium-ion battery as the main aircraft battery. If not corrected, this condition could lead to an aircraft fire. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2011-1161 and Directorate Identifier 2011-CE-036-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 43 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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

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

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

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

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

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

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

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

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

Designated in 1994, OCNMS is a place of regional, national and global significance. Connected to both the Juan de Fuca Eddy Ecosystem and the California Current Large Marine Ecosystem, OCNMS is home to one of North America's most productive marine ecosystems and to spectacular, undeveloped shorelines. OCNMS's mission is to protect the Olympic Coast's natural and cultural resources through responsible stewardship, to conduct and apply research to preserve the area's ecological integrity and maritime heritage, and to promote understanding through public outreach and education.

The sanctuary encompasses 2,408 square nautical miles of marine waters off Washington State's rugged Olympic Peninsula. OCNMS is a highly productive ocean and coastal environment important to the continued survival of many ecologically valuable species of fish, seabirds and marine mammals and commercially valuable fisheries. Abundant and diverse biological communities are supported by several types of habitat that comprise the sanctuary, including: Offshore islands; dense, sheltering kelp beds; numerous and diverse intertidal pools; rocky headlands; seastacks and arches; exposed sand and cobble beaches; submarine canyons and ridges; and the continental shelf. The sanctuary adjoins significant historical resources including American Indian village sites, ancient canoe runs, petroglyphs, American Indian artifacts and numerous shipwrecks. In addition, OCNMS is encompassed by the usual and accustomed fishing grounds of four American Indian tribes who exercise treaty reserved rights, and are co-managers of their treaty-protected resources, within the sanctuary.

Section 304(e) of the NMSA requires NOAA to review the management plan of each national marine sanctuary at regular intervals. NOAA has conducted a review of the OCNMS management plan and determined that it was necessary to revise the management plan and regulations for the sanctuary. Therefore, NOAA is now publishing final regulations, as well as a final management plan (FMP) and environmental assessment (EA).

The final management plan for the sanctuary contains a series of action plans outlining activities to better achieve resource protection, research, education, operations, and evaluation objectives for the next five to ten years. The action plans are designed to address specific issues facing the sanctuary and, in doing so, to achieve the NMSA's primary objective of resource protection (16 U.S.C. 1431(b)(6)) and fulfill the sanctuary's terms of designation (59 FR 24586, May 11, 1994). The final management plan can be downloaded at: http://olympiccoast.noaa.gov/protection/mpr/welcome.html .

This final rule revises the OCNMS regulations as described below in Section II: “Summary of the Regulatory Amendments.” The environmental effects of these final revisions are analyzed in the EA. NOAA first provided notice of this action when it announced the beginning of the OCNMS management plan review process (73 FR 53161; September 15, 2008). The public was invited to comment on the proposed rule, draft EA, which includes the draft management plan, from late January to late March 2011 (76 FR 2611 and 76 FR 6368). Comments were received electronically, by fax, by mail and at public hearings held in Port Angeles and in Forks, Washington. More than thirty comments were received on the draft management plan and proposed rule from individuals, non-governmental conservation organizations, government agencies, and special interest groups. All comments received are part of the public record and are posted at http://www.regulations.gov . NOAA's responses to the public comments received during that period are included below.

This section describes the changes to the OCNMS regulations.

The size of the sanctuary has been recalculated using improved area estimation techniques and technology, resulting in a new estimate of the size of the sanctuary. There is no change to the boundaries of the sanctuary. This change does not affect physical, biological, or socioeconomic resources because it does not alter the sanctuary's original size or boundaries.

The original OCNMS regulations estimated the sanctuary's area as approximately 2,500 square nautical miles (59 FR 24586; May 11, 1994). However, current techniques allow for more accurate area calculations. Without altering the sanctuary's existing boundaries (as defined in the OCNMS terms of designation), NOAA recalculated the area within sanctuary boundaries and found it to be 2,408 square nautical miles (approximately 8,259 square kilometers). This change is solely the result of the improved accuracy of area measurement techniques since the sanctuary's size was first estimated in 1994.

This final rule replaces the term “seabed” with the term “submerged lands” that was used in the original regulatory language prohibiting “drilling into, dredging or otherwise altering the seabed of the sanctuary” (59 FR 24586; May 11, 1994). The previous definition of the sanctuary boundary in the OCNMS terms of designation (59 FR 24586; May 11, 1994) recognizes submerged lands as part of the sanctuary. This rule change makes the regulations, which previously used the term “seabed,” consistent with the description of the sanctuary in the terms of designation. This change also makes the regulations consistent with language used in the NMSA (16 U.S.C. 1432(3)). Additionally, using the term “submerged lands” uniformly among the NMSA, OCNMS terms of designation, and OCNMS regulations improves consistency with the regulatory language for the other national marine sanctuaries, which all use the term “submerged lands.” The use of the term “submerged lands” will not alter NOAA's current jurisdiction in OCNMS in any way. This regulatory change does not affect physical, biological, or socioeconomic resources because it does not alter the original boundaries or designation of the sanctuary.

OCNMS regulations previously provided an exception for “traditional fishing” operations to three of the regulatory prohibitions. The term “traditional fishing” was defined as “using a fishing method that has been used in the sanctuary before the effective date of sanctuary designation (July 22, 1994), including the retrieval of fishing gear” (59 FR 24586; May 11, 1994). This OCNMS regulation allowed fishing operations that existed before sanctuary designation to discharge certain fishing-related materials, disturb historical resources, and disturb the seabed. The precise language of these three exceptions from the original OCNMS regulations is as follows (emphasis added):

• “Discharging or depositing, from within the boundary of the Sanctuary, any material or other matter except * * * fish, fish parts, chumming materials or bait used in or resulting from traditional fishing operations in the Sanctuary;” (15 CFR 922.152(2)(i))

• “Moving, removing or injuring, or attempting to move, remove or injure, a Sanctuary historical resource. This prohibition does not apply to moving, removing or injury resulting incidentally from traditional fishing operations.” (15 CFR 922.152(3))

• “Drilling into, dredging or otherwise altering the seabed of the Sanctuary; or constructing, placing or abandoning any structure, material or other matter on the seabed of the Sanctuary, except as an incidental result of * * * Traditional fishing operations.” (15 CFR 922.152(4)(ii))

In addition to replacing “seabed” with “submerged lands,” as described earlier, NOAA replaces the term “traditional fishing” with the term “lawful fishing” in these three places to: (1) Use a term that is more clearly understood; and (2) ensure that there is no distinction between current and future fishing operations. “Lawful fishing” is defined as follows: “Lawful fishing means fishing authorized by a tribal, state or federal entity with jurisdiction over the activity.”

Despite the definition provided in the regulation, and because of its varied connotation, the term “traditional” in OCNMS regulations may have been incorrectly interpreted ( e.g., equating traditional fishing with Native American fishing techniques). By replacing the word “traditional” with “lawful” NOAA unambiguously recognizes fishing activities authorized by fisheries management authorities. This change is also consistent with terms used in the regulations for other national marine sanctuaries on the West Coast.

In addition to being more widely understood and consistent, this change makes clear that fishing activities authorized by regulations lawfully adopted by fishery management agencies are not subject to the prohibitions in the OCNMS regulations. Since the time of sanctuary designation, NOAA has refrained from directly regulating fishing through the OCNMS regulations, and the adoption of the “lawful fishing” terminology will not alter this approach. (See, generally, Final Environmental Impact Statement (NOAA 1993) and the final rule adopting regulations for OCNMS, 59 FR 24597 (May 11, 1994)), which can be viewed on the Web and downloaded at http://olympiccoast.noaa.gov .

This rule modifies the regulations prohibiting discharging or depositing any material or other matter as follows:

These revisions address NOAA's concerns about possible impacts from large volumes of sewage and graywater discharges in the sanctuary, whether treated or not, from cruise ships. Currently, legal discharges from vessels, including cruise ships, transiting or engaging in activities in OCMNS have the potential to negatively impact water quality, as well as pose health risks to humans who use the area. The discharges of highest concern in OCNMS based on volume and potential contaminant loading are sewage, graywater, and bilge water. These modifications to OCNMS regulations will also make OCNMS discharge/deposit prohibitions consistent with the prohibitions for cruise ship discharge/deposit already in effect within the other four West Coast national marine sanctuaries.

Analysis of the actual time cruise ships transited OCNMS in 2009 and estimated wastewater generation rates provides a range of potential annual discharge volumes from 0.2 to 1.3 million gallons of treated sewage and from 1.5 to 5.0 million gallons of graywater. Evaluation of potential environmental impacts of these discharges is complicated. The nutrient and chemical concentrations in wastewater discharges varies depending on both the type of wastewater treatment system being used as well as the ongoing functional performance of individual systems. Also, the volume of wastewater actually discharged from cruise ships in the sanctuary is uncertain. While industry representatives have stated that cruise ships currently avoid all discharges in the sanctuary, this has not been verified. Thus, it is difficult to quantify specific reductions in individual nutrients or chemicals that would be achieved under this final rule.

Additional analysis of the potential impacts to biological, physical and socioeconomic resources from sewage, graywater, and bilge water discharges/deposits are provided in Section 8 of the EA.

Sewage, also referred to as blackwater, is defined as human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes (40 CFR 140.1). Sewage from vessels is generally more concentrated than sewage from land-based sources, as it is diluted with less water when flushed ( e.g., 0.75 versus 1.5-5 gallons), and on many vessels sewage is not further diluted with graywater. Sewage generated on vessels is usually directed to a marine sanitation device (MSD).

The CWA requires that any vessel with installed toilet facilities must have an operable MSD. Three general types of MSDs are available and in use. Type I MSDs rely on maceration and chemical disinfection for treatment of the waste prior to its discharge into the water, and are only legal in vessels under 65 feet in length. Type II MSDs utilize aeration and aerobic bacteria in addition to maceration for the breakdown of solids. As with Type I MSDs, the waste is chemically disinfected, typically with chlorine, ammonia or formaldehyde, prior to discharge. Type II MSDs are legal in any size class of vessel, and there are a variety of different types. Type III MSDs are storage tanks, may contain deodorizers and other chemicals, predominantly chlorine, and are used to retain waste until it can be disposed of at an appropriate pump-out facility or at sea. Most MSDs do not have the same nutrient removal capability as land-based treatment plants. Thus, even treated vessel wastewater can have elevated nutrient concentrations.

Advanced wastewater treatment systems (AWTS) are a complex form of Type II MSD that meet a higher standards and testing regime as set out in Federal law, and utilize techniques such as reverse osmosis, ultrafiltration and ultra violet (UV) sterilization to provide more effective treatment. AWTS have been installed on more than half (9 of 15) larger passenger vessels that will transit the sanctuary in 2011 and on these vessels blackwater and graywater are combined. Some of the remaining 6 vessels may have installed AWTS; however, due to equipment and operating challenges, they are not functioning properly and are not being used. These vessels are therefore currently using traditional (Type II) MSDs. The treatment capabilities of AWTS for certain constituents ( e.g. nutrients and metals) vary by design and manufacturer, but overall, the performance of these units far surpasses the performance of traditional (Type II) MSDs. For example, suspended solids, residual chlorine, and fecal coliform concentrations in AWTS effluent are typically zero.

Discharges from AWTS may introduce disease-causing microorganisms (pathogens), such as bacteria, protozoans, and viruses, into the marine environment. In addition, sewage discharges from ships, particularly those not using AWTS, contain nutrients that create biological and chemical oxygen demand and could contribute to algae blooms that, in turn, could intensify low dissolved oxygen levels known to occur in the sanctuary. Pathogens from sewage have the potential to contaminate commercial or recreational shellfish beds (a human health risk) and to harm wildlife and humans directly. They may also yield unpleasant esthetic impacts to the sanctuary (diminishing sanctuary resources and its ecological, conservation, esthetic, recreational and other qualities).

Like sewage, graywater discharges also have the potential to degrade water quality. Graywater can contain a variety of substances including (but not limited to) detergents, oil and grease, pesticides, and food wastes. Graywater discharges from cruise ships can have constituent levels in a range similar to that of untreated domestic waste water, and levels for nutrients, biological oxygen demand, fecal coliforms, and food pulper wastes may be many times higher than typical domestic graywater. Nutrients in graywater could negatively impact water quality in the same manner and in combination with discharges of treated sewage from cruise ships. At least three of the cruise ships that transit the sanctuary have no graywater treatment system. These ships constitute over 30% of transits in 2010 and 25% of the transits scheduled for 2011. Fecal coliform concentrations in graywater often exceed the 200 fecal coliforms/100 ml performance standard for MSDs.

Bilgewater is the mixture of fresh water and seawater, oily fluids, lubricants, cleaning fluids and other wastes that accumulate in the bilge, or lowest part of a vessel hull, from a variety of sources including leaks, engines and other parts of the propulsion system, and other mechanical and operational sources found throughout the vessel. All vessels accumulate bilgewater through their normal operation, but the generation rates depend on a variety of factors including hull integrity, vessel size, engine room design, preventative maintenance, and the age of the vessel. In addition to oil and grease, bilgewater may also contain a variety of other solid and liquid contaminants, such as rags, metal shavings, soaps, detergents, dispersants, and degreasers. Estimates of bilgewater discharges to the sanctuary are not available for most classes of vessels. Data for bilgewater generation from cruise ships were available, with an estimated volume of 25,000 gallons produced per week (3,500 gallons per day) on vessels with 3000 passenger/crew capacity (EPA 2008b).

Several national and international regulations govern allowable discharges of bilgewater in an effort to reduce oil contamination of the oceans. These regulations require that ships have operational oil-water separating equipment and that discharges may not exceed 15 parts per million oil. An EPA Vessel General Permit (VGP) prohibits discharge of treated or untreated bilgewater from vessels 400 gross tons or more within 3 mi of shore in a national marine sanctuary. OCNMS regulations prohibit all discharge of oily waste from bilge pumping. Because sanctuary regulations do not specify a limit, this has been interpreted by ONMS as prohibiting any detectable amount of oil as evidenced by a visible sheen. Under current OCNMS regulations discharge of bilgewater that does not leave a visible sheen is allowed.

Discharge of bilge water from cruise ships has the potential to introduce oils, detergents, degreasers, solvents, and other harmful chemicals into the marine environment that can harm water quality and generate oxygen demand.

A definition of “cruise ship” is added to OCNMS regulations as follows: “Cruise ship means a vessel with 250 or more passenger berths for hire.” This definition is consistent with the vessel discharge regulations governing the other four national marine sanctuaries on the West Coast. This definition includes cruise ships where berths are offered for sale or are marketed as condominiums.

The definition of “clean” is added to OCNMS regulations as follows: “ Clean means not containing detectable levels of harmful matter.” This definition is consistent with the vessel discharge regulations governing the other four national marine sanctuaries on the West Coast.

The definition of “harmful matter” is added to OCNMS regulations as follows: “ Harmful matter means any substance, or combination of substances, that because of its quantity, concentration, or physical, chemical, or infectious characteristics may pose a present or potential threat to Sanctuary resources or qualities. Such substance or combination of substances include but are not limited to: Fishing nets, fishing line, hooks, fuel, oil, and those contaminants (regardless of quantity) listed pursuant to 42 U.S.C. 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act at 40 CFR 302.4.” This definition is consistent with the vessel discharge regulations governing the other four national marine sanctuaries on the West Coast.

Under the previous regulations, ONMS could issue a permit to conduct an activity otherwise prohibited if it found that the activity qualifies for one of the approved purposes listed in the regulations. One of the purposes listed for permit issuance for OCNMS was to “promote the welfare of any Indian tribe adjacent to the sanctuary.” This provision was ambiguous and could be interpreted as allowing an entity not affiliated with a tribe to apply for a permit that it alleges could promote the welfare of an American Indian tribe adjacent to the sanctuary without the explicit agreement or participation of the American Indian tribe. The concept of “promote the welfare of any Indian tribe” was not defined or explained further in the original regulations, the terms of sanctuary designation, or the 1993 Final EIS. As a result, it could be difficult to evaluate permits relative to this purpose.

NOAA modifies the regulation to clarify that a permit under this provision is available only to American Indian tribes adjacent to the sanctuary ( i.e., Hoh, Makah, and Quileute Tribes and the Quinault Indian Nation) or its designee. To this end, NOAA replaces the phrase “or promote the welfare of any Indian tribe adjacent to the Sanctuary” with a more descriptive basis for permit issuance. NOAA intends to consider permit applications made by an adjacent American Indian Tribe, or its designee as certified by the governing body of the tribe, “to promote or enhance tribal self-determination, tribal government functions, the exercise of treaty rights, the economic development of the tribe, subsistence, ceremonial and spiritual activities, or the education or training of tribal members.”

1. NOAA deletes the definition for the term “Federal project”. The original OCNMS regulations used this term to refer to “Federal projects in existence on July 22, 1994.” However, there is only one project that fits this definition: The Quillayute River Navigation Project. For clarity, NOAA revises the OCNMS regulations to reference the Quillayute River project specifically. The definition for “Federal Project” is deleted because the term will no longer be used in the regulations. The term “Quillayute River Navigation Project” is used in § 922.152(a)(1)(E) and § 922.152(h).

2. The mailing address for permit applications in § 922.153 is updated to reflect the current OCNMS office location.

NOAA has prepared a final environmental assessment to evaluate the environmental effects of this rulemaking. Copies are available at the address and Web site listed in the ADDRESSES section of this final rule. Responses to comments received on the proposed rule are published in the final environmental assessment and preamble to this final rule.

Section 307 of the Coastal Zone Management Act (CZMA; 16 U.S.C. 1456) requires Federal agencies to consult with an affected state's coastal program on potential Federal regulations having an effect on state waters. Because the sanctuary encompasses a portion of the Washington State waters, NOAA submitted a copy of the proposed rule and supporting documents to the State of Washington Coastal Zone Management Program for evaluation of Federal consistency under the CZMA. Washington State agreed with NOAA's determination that the draft management plan, draft environmental assessment and the proposed rule were consistent to the maximum extent practicable with the applicable enforceable policies of Washington's Coastal Zone Management Program and will not result in any significant impacts to the State's coastal resources.

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

NOAA has concluded that this regulatory action does not have federalism implications sufficient to warrant preparation of a federalism assessment under Executive Order 13132. Members of the OCNMS Advisory Council, Olympic Coast Intergovernmental Policy Council, the Washington Department of Ecology, the Washington Department of Fish and Wildlife, the Washington Department of Natural Resources, the Washington State Ocean Caucus, and Pacific Fishery Management Council have been closely involved with the development of the final management plan for OCNMS and this rule. In addition, OCNMS staff has consulted with staff from all of the previously mentioned state agencies, along with the Washington State Historic Preservation Office, on development of the EA that supports the final rule. The State of Washington Governor's Office, as a member of the Olympic Coast Intergovernmental Policy Council, has also been involved in developing the final management plan, EA, and the final rule.

This final rule was developed after consultation and collaboration with representatives from the Makah, Hoh, and Quileute Tribes and the Quinault Indian Nation through their membership on the Olympic Coast Intergovernmental Policy Council (IPC) and the OCNMS Advisory Council. In addition to discussions with the IPC, NOAA sought direct government to government consultations with the Hoh, Makah, and Quileute Tribes and the Quinault Indian Nation. NOAA and the Makah Tribe consulted on a government to government basis to respond to the Makah Tribe's concerns related to the proposed rule. This final rule takes that consultation into consideration.

In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., the Chief Counsel for Regulation at the Department of Commerce certified to the Chief Counsel for Advocacy, Small Business Administration that this action will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. No comments were received regarding the economic impact of this rule. As a result, a final regulatory flexibility analysis is not required and none was prepared.

This rule does not contain any new information collection requirements or revisions to the existing information collection requirement that was approved by OMB (OMB Control Number 0648-0141) under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB control number.

The following changes have been made to the regulatory changes proposed in the proposed rule (76 FR 2611; January 14, 2011) as a response to public comments received during the public comment period and a government to government consultation with the Makah Tribe.

The proposed rule identified a need to improve the specificity for the issuance of a permit to “promote the welfare of a tribe.” The proposed rule explained the purpose of the permit as follows: “To promote or enhance tribal self-determination, tribal governmental functions, the exercise of treaty rights or the economic development” of an American Indian tribe adjacent to the sanctuary.

Comments received from the Makah Indian Tribe, and elaborated upon by the Tribe during government-to-government consultation, identified three important concerns with the proposal. First, the language of the proposed rule and its accompanying explanation suggest that a tribe must be the sole applicant for this type of permit. Second, that issuance of a permit to a tribe is inappropriate given the tribe's status as a co-equal sovereign. Third, the list of eligible activities which are substituted for “welfare of a tribe” in the proposed rule is too limiting and additional language was suggested by the Makah Tribe.

NOAA has carefully considered each of these concerns, and related recommendations from the Makah Tribe and finds that the final rule should be modified to reflect some of the improvements proposed by the Tribe.

First, to clarify the ambiguity created by language in the proposed rule, NOAA has modified the final rule to make clear that either a Coastal Treaty Tribe ( i.e. Hoh, Makah, and Quileute Indian Tribes and the Quinault Indian Nation) or its designee may apply for or be a co-applicant for a permit to promote or enhance tribal self-determination. The final rule language further clarifies that the governing body of the tribe must certify the tribal designee as applicant or co-applicant for a permit, but the tribe need not itself be the applicant or co-applicant. It is not the intent of this language to limit the persons or entities who may apply for a permit under this provision or to require an agency relationship between a tribe and its designee. Rather, it is the intent of this language to create a procedure for NOAA to be assured that at least one person or entity among the co-applicants, or the applicant itself, has been formally designated by the tribe to apply for the permit as a means to advance the interests of the tribe. This language also allows for less direct involvement by the tribe in the permitting process as long as either an applicant or co-applicant is formally designated by the governing body of the tribe. In addition, any issues regarding the interests of a tribe in a project or permit application or the tribe's designee as the permit applicant or co-applicant may be a topic of government to government consultation between NOAA and the tribe.

Certification from the governing body of the tribe that the person or entity, whether an applicant or co-applicant, has been formally designated by the tribe to apply for the permit could be provided in various forms, the most obvious of which is a resolution adopted by the governing body of the tribe. There may be other forms of providing the official position of the tribal government depending upon the practices of each tribe.

The final rule incorporates the Makah Tribe's suggestion of additional tribal self-determination activities. NOAA did not, however, include the “but not limited to” language because it believes that nearly all activities eligible for a permit to promote tribal self-determination are either specifically described in the rule language or would be so closely related to one of the enumerated activities that they would be eligible for the permit even though not specifically described. NOAA's intent in substituting for the “welfare” language of the original rule is not to limit the broad range of activities eligible for a permit, but rather to describe common ways in which activities in the sanctuary may promote the well-being of the Coastal Treaty Tribes and their members.

The proposed changes to the OCNMS regulations (76 FR 2611)included a new definition of “clean”, a term that appears in the prohibition on vessel discharges in § 922.152(a)(3). This definition of “clean” was adopted in an effort to increase consistency for regulations among national marine sanctuaries on the West Coast. The definition for “clean” includes the term “harmful matter,” which was not explicitly defined in the proposed rule. One of the comments NOAA received during the public comment period mentioned that the definition of “clean” was not meaningful or enforceable because of the ambiguity of the term “harmful matter” contained within it. NOAA agrees with that opinion, and in fact the regulations for the other national marine sanctuaries on the West Coast include a definition for “harmful matter” to complement the definition for “clean.” The omission of a definition for “harmful matter” was unintentional. Therefore, NOAA is adding the definition of “harmful matter” to the final rule, consistent with the regulations for the other national marine sanctuaries on the West Coast. This change between the proposed and final rule does not change the intent of the regulation and only serves to clarify the new definition of “clean” presented in the proposed rule.

The regulations in § 922.152(h) describe instances of activities prohibited in the sanctuary for which the Director may not issue a National Marine Sanctuary permit. One of those instances is the discharge of primary-treated sewage in the sanctuary. The previously effective regulatory text mentioned an exception to this prohibition if there was a “certification, pursuant to § 922.47, of valid authorizations in existence on July 22, 1994 and issued by other authorities of competent jurisdiction (15 CFR 922.152(h)).” However, the exception is unnecessary since no such certification has ever been pursued and no primary-treated sewage is currently being discharged in the sanctuary. NOAA did not realize until after the publication of the proposed rule that this exception could be removed to simplify the regulatory text. Since no activity, past or current, matches the description in the exception, the deletion of this text has no substantive impact on users of the sanctuary.

The National Oceanic and Atmospheric Administration (NOAA) conducted 2 public hearings to gather input on the Olympic Coast National Marine Sanctuary (OCNMS) draft management plan/environmental assessment and proposed rule during the public comment period from January 14 through March 25, 2011. All written and verbal comments received during the public comment period were compiled and grouped into twelve general topics. Similar comments from multiple submissions have been treated as one comment for purposes of response. NOAA considered all of these comments and, where appropriate, made changes to the final management plan (FMP) and environmental assessment (EA) in response to the comments. Editorial comments on the FMP/EA were also taken under consideration by NOAA and, where appropriate, applied to the EA or FMP. These comments are not included in the list below due to their editorial nature. Substantive comments received are summarized below, followed by NOAA's response.

Comment: The collaborative nature of the OCNMS management plan review (MPR) process is appreciated. The 20 action plans in the management plan and the regulatory actions presented as Alternative B in the environmental assessment appropriately and thoroughly represent the highest priorities for OCNMS.

Response: NOAA appreciates the support it received from the OCNMS Advisory Council (SAC), Olympic Coast Intergovernmental Policy Council (IPC), interested groups, organizations and individuals in developing the DMP, and in particular the 20 action plans. NOAA also appreciates the support for Alternative B and has selected it as the basis for the final management plan.

Comment: NOAA should prioritize particular action plans, strategies, or activities and develop appropriate staffing strategies to implement the final management plan (FMP).

Response: The action plans in the FMP comprise an ambitious body of work. For that reason, prioritization of action plans and strategies in the FMP is essential. NOAA worked with the SAC and the IPC in order to develop the implementation strategy provided in Table 5 in the FMP. This implementation table categorizes strategies as high, medium and low priorities for OCNMS under three different, hypothetical budget scenarios. NOAA will use the implementation table to consider priorities for operations on an annual basis. Future organizational structure and staffing decisions will be based on this prioritization of the strategies in the FMP, as well as the skills needed to implement the FMP. Because there is uncertainty about how future funding levels will influence prioritization, NOAA did not include a specific organizational structure or staffing plan in the FMP.

Comment: The final management plan should clarify and specify that the highest priority management goal of the Olympic Coast National Marine Sanctuary continues to be, “the protection of the marine environment and resources and qualities of the Sanctuary.”

Response: Resource protection is the primary objective identified in the National Marine Sanctuaries Act (NMSA) and is, therefore, the highest priority for OCNMS. The six priority management needs and the goals and objectives for OCNMS outlined in the FMP were developed collaboratively through a public process with the SAC and the IPC. The OCNMS goals and objectives are not presented in an explicitly prioritized order; they are all considered important to OCNMS in the context of resource protection.

Comment: To avoid confusion among members of the public, NOAA should make clear that there are other, ongoing NOAA regulatory actions separate from the OCNMS management plan review process.

Response: At any given time, NOAA may have a number of regulatory actions in progress, some of which may affect OCNMS. For example, the ONMS has recently proposed a rule addressing disturbances of wildlife by aircraft flying over national marine sanctuaries (75 FR 76319). Other NOAA regulatory actions include fishery management actions under the Magnuson-Stevens Conservation and Management Act, authorizations under the Marine Mammal Protection Act, or permits under the Endangered Species Act.

Comment: NOAA's regulatory reach in managing OCNMS has expanded beyond the original goal of providing greater protection to tribal treaty fisheries and subsistence resources from the harmful effects of offshore oil development and oils spills.

Response: The 1994 terms of designation for OCNMS states that the sanctuary was established for the purposes of protecting and managing the conservation, ecological, recreational, research, educational, historical and aesthetic resources and qualities of the area. The scope of regulations, as defined in the OCNMS terms of designation, and the regulations for OCNMS have not changed since 1994. The few changes to OCNMS regulations identified in this rule are within the scope of regulations defined in the OCNMS terms of designation.

Comment: NOAA should release an annual report to the public summarizing the progress made with implementation of the OCNMS management plan.

Response: NOAA agrees and plans to produce such a report.

Comment: NOAA should continue its efforts to build and strengthen its relationships with communities on the outer coast of the Olympic Peninsula, as well as collaborate with the Lake Ozette Sockeye Committee (LOSC) to assist in reducing risk factors for sockeye salmon survival. Since collaboration among groups can at times be contentious or volatile, NOAA should enlist the assistance of a professional facilitator at meetings to strengthen collaboration among key partners.

Response: NOAA agrees and intends to continue efforts in this area, as identified in multiple strategies and activities in the Community Involvement in Sanctuary Management and Community Outreach action plans included in the FMP. While not an active participant, OCNMS staff have been monitoring the work of the LOSC. The Lake Ozette Sockeye Recovery Plan is focused on terrestrial and freshwater management options. Improved understanding of marine habitat use by sockeye salmon, particularly juveniles, is important to effective management and, perhaps, recovery of this ESA listed species, and NOAA supports collaboration on related research within the boundaries of the sanctuary. Several strategies in the FMP provide flexibility to consider such collaborations over the 5-10 year implementation period for the FMP. In addition, NOAA utilizes professional facilitators on occasion, when appropriate. It is not possible, nor necessary, to use professional facilitation at all meetings.

Comment: Electronic submission should not be the primary method used for the public to submit comments on these documents because many people living on the West end of the Olympic Peninsula do not have internet access. In addition, the products and actions of the IPC and the SAC are not sufficiently transparent to the public.

Response: NOAA accepted comments by several means, including: In writing, orally at public hearings, electronic submissions, and by fax. All OCNMS SAC meetings are open to the public, as were all the SAC working group meetings and workshops that resulted in preliminary draft action plans. These meetings and workshops were announced on the OCNMS Web site and periodically advertised to the email listserve developed for OCNMS MPR. One of the reasons Sanctuary Advisory Councils are an integral part of the management plan review process for all sites within the National Marine Sanctuary System is to ensure that management plans are reviewed and revised in a public forum. While the IPC meetings themselves are not required to be public, in all cases where the IPC provided recommendations for the draft management plan, these recommendations were discussed at SAC meetings, which are open to the public. Each step of the OCNMS MPR process, including meeting notes of all the SAC meetings, has been documented and is publically available on the OCNMS Web site.

Comment: The Environmental Assessment frequently confuses Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and National Environmental Policy Act (NEPA) “effects” language and conclusions.

Response: The OCNMS EA is written in conformance with the National Environmental Policy Act (NEPA) (42 U.S.C. 4332) and NEPA regulations (40 CFR part 1500) and does not contradict or conflict with language pertaining to adverse impacts or effects contained in either the Endangered Species Act or Marine Mammal Protection Act. Phrasing similar to threshold language of the ESA and MMPA was used in the EA but was not used in the context of characterizing impacts.

Comment: The Desired Outcome stated at the beginning of each sub-plan in the OCNMS management plan should be more specifically tailored to a five- or ten-year goal statement where one could measure progress or success, and direct efforts for OCNMS, as well as for partners and collaborators, as future funding becomes available.

Response: The Desired Outcome statements are intended to be a broader characterization of the end result that OCNMS hopes to achieve with each action plan. The desired outcomes are intended to tie each action plan to the goals and objectives outlined at the beginning of the management plan. The performance measures identified in the FMP are intended to be the specific measures of progress or success.

Comment: NOAA should pursue inter-governmental agreements or memoranda of agreement (MOAs) to declassify appropriate U.S. Navy maps and bathymetric data.

Response: NOAA agrees and has edited two strategies to address the issue of U.S. Navy bathymetric data acquisition: Collaborative and Coordinated Sanctuary Management Action Plan Strategy, Strategy CCM7: United States Navy, Activity B; and Habitat Mapping and Classification Action Plan, Strategy MAP1: Regional Coordination, Activity C.

Comment: NOAA should develop a marine nearshore assessment to determine if sockeye populate the region, and improve the regional Geographic Response Plans that direct initial response to oil spills.

Response: While conducting a nearshore assessment of sockeye salmon populations is beyond its current capacity, NOAA is interested in participating in a collaborative effort to conduct such a study. The Spills Prevention, Preparedness, Response and Restoration Action Plan, Strategy SPILL3: Regional Planning and Training Exercises, Activity E has been modified to seek improvements to geographic response plans in the area of threatened and endangered species protection.

Comment: NOAA should remove the activity in the management plan that requests that U.S. Coast Guard (USCG) conduct a vessel traffic risk study of the western Strait of Juan de Fuca. USCG has reviewed this issue and found aids to navigation adequate in this area.

Response: The recommendation for NOAA to encourage the USCG to conduct a vessel traffic study was made by consensus by the Spills Prevention, Preparedness, Response and Restoration Working Group. NOAA considers the review of maritime safety within and adjacent to sanctuary boundaries to be an ongoing priority. The frequency at which specific reviews and studies should be undertaken will be a subject of ongoing discussions between NOAA and USCG.

Comment: NOAA should/should not make the Area to be Avoided (ATBA) mandatory.

Response: The ATBA is currently a voluntary vessel traffic measure with a high compliance rate (98.9% compliance in 2009) that is routinely monitored by NOAA. Based on the high level of compliance, NOAA elected to not support the alternative in the EA (alternative C) that would pursue a mandatory ATBA. If compliance rates were to decrease significantly, NOAA would revisit this issue after consulting with the USCG and other partners. NOAA supports alternative B, which would maintain the voluntary status of the ATBA based on high compliance rates.

Comment: NOAA should archive regularly collected satellite data on sea surface temperature and primary productivity.

Response: The collection and archiving of satellite data is the responsibility of NOAA's National Environmental Satellite, Data, and Information Service (NESDIS). Satellite data products including SST and primary productivity indicators (chlorophyll a) are currently archived at NESDIS. Most archival data are found in the CLASS system. (Comprehensive Large Array-data Stewardship System) at http://www.class.ncdc.noaa.gov/saa/products/welcome.

Comment: NOAA should utilize backpackers to help with monitoring efforts in the sanctuary ( e.g., pass out marine mammal stranding cards, where backpackers could report information).

Response: NOAA believes in the value of citizen science and is a partner in the Coastal Observation and Seabird Survey Team (COASST), through which volunteers survey designated segments of the coast on a monthly basis. COASST volunteers receive training in the monitoring methods to ensure the accuracy and utility of data to resource managers and scientists. NOAA does work with Olympic National Park (ONP) staff to provide information at trail heads that provides information on how to report marine mammal strandings. NOAA is a partner in the Northwest Marine Mammal Stranding Network, which documents and coordinates response to marine mammal strandings. NOAA participates in stranding network trainings that are provided to ONP's coastal rangers and are open to all interested parties.

Comment: NOAA should include a representative from the Northwest Fishery Science Center in the efforts to develop a list of indicator species for OCNMS.

Response: NOAA agrees. In strategy ECO9: Ecosystem Processes in the FMP, Northwest Fisheries Science Center is identified as a key partner in efforts to identify indicator species for the sanctuary area.

Comment: The management plan should focus less on collection of more data and should contain more explanation of how NOAA will implement ecosystem based management in OCNMS in the context of the Coastal and Marine Spatial Planning.

Response: During development of the management plan, NOAA determined that data collection is a priority to support EBM implementation because data on natural resources in the sanctuary is still scarce. The FMP directs NOAA to work with its partners over the coming years to determine how to implement EBM in the sanctuary region. Collection and analysis of data on sanctuary resources are important steps in that direction. Implementation of EBM needs to occur on a scale larger than the sanctuary and will require collaboration between NOAA, the Coastal Treaty Tribes, the State of Washington, and other partners. Coastal and marine spatial planning (CMSP), as discussed in the FMP, is being implemented on a statewide and regional scale. CMSP is a data-dependent process that will be improved by more comprehensive characterization of natural resource distribution, condition, and use.

Comment: NOAA should consider measures such as time/area closures, take limits on prey species, and restrictions on fishing activities specifically during the EFH groundfish 5-year review.

Response: In the FMP, NOAA does recognize the ecological importance, sensitivity to disturbance, and slow recovery potential of biogenic habitats, such as deep sea corals and sponges, and is committed to their protection. The Habitat Mapping and Classification Action Plan in the FMP supports seafloor habitat mapping, including identifying where biogenic habitats occur and sharing these data with other natural resource managers. The Habitat Protection Action Plan in the FMP supports OCNMS staff participation in the Pacific Fishery Management Council (PFMC) process to identify and review essential fish habitat (EFH) and habitat areas of particular concern (HAPC) for Pacific Coast groundfish. This action plan also supports collaborative development and evaluation of recommendations for HAPC sites and EFH conservation areas.

Comment: NOAA should define essential fish habitat. Where is it for each species and what are the limitations of use within it?

Response: Essential fish habitat (EFH) is defined in the Magnuson-Stevens Fishery Conservation and Management Act as `those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity' (16 U.S.C. 1802(10)). This Act requires NMFS to assist the regional fishery management councils in the implementation of EFH in their respective fishery management plans. This Act also requires Federal agencies to consult with NMFS on any federal action that may have an adverse effect on EFH. A designated groundfish EFH area in OCNMS, named Olympic 2, is identified in the FMP, and non-tribal bottom trawlers are prohibited from fishing within Olympic 2. The water column in the sanctuary is also designated EFH for Chinook, Coho, and Pink salmon and some coastal pelagic species (anchovies, sardines, squid, and mackerel). There are no specific fishery management limitations associated with these water column EFH designations.

Comment: Conservation issues, including any national ONMS initiatives, that may require modification of fisheries regulations should be referred to the Pacific Fishery Management Council for appropriate action.

Response: In the event modification to Federal fishery regulations is necessary, NOAA will bring the issue to the PFMC's attention through established processes. At this time, there are no national initiatives by the ONMS that would impact Pacific Fisheries Management Council-managed species.

Comment: NOAA should address in the management plan how the access to fishing and shellfishing (in this case, the intertidal zone that was deeded to the Federal government) might be regulated to adhere to state of Washington requirements.

Response: NOAA is not proposing to alter fisheries management through this FMP, therefore this issue is beyond the scope of this rulemaking.

Comment: OCNMS's goals of protecting, conserving, and enhancing sanctuary resources should include the seascape, lightscape and soundscape of OCNMS for this and future generations as it relates to the overall recreational hiking experience along that portion of the Washington Coast Trail adjacent to the sanctuary.

Response: As part of the original OCNMS designation in 1994, NOAA described the characteristics of the sanctuary that made it an area of special national significance. One such characteristic was “its rugged and undeveloped coastline”. In addition, the National Marine Sanctuaries Act identifies both recreational and esthetic qualities as important characteristics of national marine sanctuaries. NOAA will consider impacts on these characteristics in its review of permit applications for activities in OCNMS. The coastal wilderness of Olympic National Park and the Washington Islands National Wildlife Refuges are additional federal designations that recognize and protect the Olympic Coast as a special and unique area in the continental United States.

Comment: NOAA should increase public awareness of the Sanctuary resources by making use of the natural beauty found above and below the water in a newsletter or a Web site.

Response: The desired outcomes of the Visitor Services Action Plan are to improve awareness of the sanctuary and ocean issues, and to provide an enriched and extended coastal travel experience. This action plan supports an update of the OCNMS Web site and use of additional appropriate technologies, such as social networking, webcasts, and smartphone applications.

Comment: NOAA should develop a southern information center in Aberdeen.

Response: The Visitor Services Action Plan outlines efforts to assess locations for additional visitor information centers. Planning efforts proposed under this action plan will include market feasibility, assessment of potential visitor traffic, and a survey of education and interpretation thematic opportunities.

Comment: The U.S. Navy is committed to considering the use of biodegradable components for military expendable materials during training and RDT&E activities to the extent that such materials are available, will meet mission requirements, and are practicable.

Response: NOAA appreciates the U.S. Navy's efforts in this area. NOAA has agreed to participate in a U.S. Navy-led initiative to develop biodegradable alternatives for expendable materials used in marine environments.

Comment: No summary of Navy research, development, testing and evaluation, and fleet training activities is provided in the document, and NOAA does not set out any position on the activities of the U.S. Navy.

Response: The Navy EISs for the Northwest Training Range Complex and the Keyport Range Complex Extension were under development simultaneously with the OCNMS DMP/DEA. Both Navy EIS documents were finalized in 2010 and they provide the most detailed information publicly available on Navy activities and their impacts on resources in the sanctuary. NOAA does not have additional information on Navy activities in the sanctuary beyond what has been presented to the public in these documents. The characterization of Navy activities in the sanctuary was expanded in the OCNMS FMP/EA, and references were updated. In addition, the issues that NOAA raised with the Navy, primarily focused on potential impacts to biogenic seafloor habitats and discharge of expendable materials, were noted in the FMP/EA. NOAA supports the mission of the U.S. Navy and understands the importance of their research and training activities. NOAA believes that, when possible, it is preferable that these activities take place outside of national marine sanctuaries. In cases where this is not feasible, NOAA seeks to work with the Navy to ensure that their activities are carried out in a manner that avoids to the maximum extent practicable any adverse impacts on sanctuary resources and qualities.

Comment: Section 6.4.5 of the EA should explain that the proposed action evaluated in the EIS for the Northwest Training Range Complex (NWTRC) did not trigger the consultation requirements of Section 304(d) of the National Marine Sanctuaries Act.

Response: NOAA recognizes that the Navy prepared a detailed Environmental Impact Statement (EIS) addressing its activities within the NWTRC, and during the process to develop this EIS, the Navy responded to written comments submitted by NOAA.

Section 304(d) of the National Marine Sanctuaries Act (NMSA) requires federal agencies whose actions are “likely to destroy, cause the loss of, or injure a sanctuary resource” to consult with NOAA before taking action. NOAA found that the Navy's proposed activities within the NWTRC increased in scope and intensity the activities previously undertaken by the Navy and represented increased adverse impacts to sanctuary resources. NOAA recognizes that despite differing opinions of the applicability of section 304(d), the Navy has been willing to meet with NOAA to discuss the effects of Navy activities on sanctuary resources, and has responded in writing to reasonable and prudent alternatives recommended by NOAA.

Comment: NOAA should express concern regarding the significant expansion of activities of the U.S. Navy in the sanctuary in order to fulfill its public trust responsibilities.

Response: Both the Navy and NOAA have public trust duties to public resources. NOAA commented on the Navy EISs through interagency consultation. Throughout development of the Navy's documents NOAA worked with the Navy to ensure the protection of sanctuary resources. NOAA recognizes the Navy's cooperation during consultation with NOAA pursuant to section 304(d) of the NMSA on the Navy's proposed expansion of the Keyport Range Complex.

Comment: The rule should be amended to reflect the fact that authorized Navy activities occur in all of the areas described in the Navy's comment letter as authorized by 15 CFR 922.152(d).

Response: 15 CFR 922.152(d) references geographically specific areas and identifies a suite of Department of Defense activities that are exempt from sanctuary regulations. These exceptions do not apply to the entire sanctuary. If the Department of Defense has a need to extend the geographic extent of these exceptions or wishes to add new activities to the identified list in the regulations, NOAA would consider such changes per the provisions in 15 CFR 922.152(d)(1)(ii).

Comment: The EA's conclusion that there would be a very low likelihood of adverse effects to marine life from use of the common echo sounder does not reflect the best available science.

Response: NOAA reassessed its analysis, corrected inaccuracies, and provided additional information in the FMP/EA and still stands by its initial conclusions. Whereas sound produced by hydrographic survey equipment is detectable by some marine mammals, NOAA concluded there is very low likelihood of adverse effects to marine life from use of this equipment based on the low intensity level and rapid attenuation of the sounds, limited area of sonification, and use of frequencies that are beyond peak hearing ranges for most marine mammals.

Comment: The EA, in particular Table 17, which does not identify its source of data, does not agree with the best scientific data available in Southall et al. 2007.

Response: NOAA reassessed its analysis, corrected inaccuracies, and provided additional information in the FMP/EA and stands by its initial conclusions. Southall et al. (2007) does not provide hearing range limits for individual species but combines cetaceans into three functional hearing groups: Low-frequency, mid-frequency, and high-frequency cetaceans. The revised EA incorporates analysis based on functional hearing groups identified in Southall et al. (2007) and does not include Table 17 or statements on the hearing ranges of individual species.

Comment: Any mandate or requirement on overflights must be enacted by the FAA following the standard rulemaking process.

Response: The existing overflight regulation for OCNMS has been in place since the sanctuary's creation in 1994. NOAA is not making any changes to the overflight regulation in the rulemaking associated with the OCNMS FMP/EA. The purpose of the overflight restriction zone is to minimize disturbance to wildlife from low flying aircraft. Conservation of wildlife populations is within the authorities of the NMSA. This regulation is consistent with the FAA Advisory that applies to Department of the Interior lands on the outer coast of Washington, but it is not redundant with any FAA regulation. There is a separate rulemaking associated with West Coast sanctuaries overflight regulations (75 FR 76319) that was developed by NOAA in collaboration with the FAA. NOAA has worked with the FAA to ensure that the West Coast sanctuaries regulations are consistent with FAA regulations and can be included on FAA aeronautical charts. FAA has supported this effort.

Comment: The Olympic National Park (ONP) should be afforded the same exemption to the overflight regulation that is afforded to local Indian tribes.

Response: The current exception in 15 CFR 922.152(a)(6) was placed in the original 1994 OCNMS regulations at the request of the Indian Tribes adjacent to the sanctuary to ensure that the Indian Tribes have access to reservation lands. The overflight regulation does not prevent staff of the Olympic National Park to access park land; therefore, NOAA does not believe that an exception for the ONP is necessary. It is important to note that the OCNMS overflight restriction zone does not apply to activities necessary to respond to emergencies threatening life, property or the environment (15 CFR 922.152(b)) or to activities necessary for valid law enforcement purposes (15 CFR 922.152(c)).

Comment: Cruise ship discharges should be banned in OCNMS, as proposed under alternative B.

Response: NOAA has selected alternative B as the preferred alternative, which includes a ban on cruise ship discharges, but has modified its analysis in the FMP/EA based upon comments received.

Comment: The proposed regulation unfairly targets cruise ships and not other large vessels.

Response: Cruise ships are a unique class of vessels that generate wastewater effluents in very large volumes and types that are unique in the maritime industry. There is widespread precedent for discharge regulation of cruise ships as a distinct vessel class on the West Coast of the U.S. ( i.e., states of California, Washington, and Alaska) and nationally ( i.e., in the Environmental Protection Agency Vessel General Permit).

Comment: NOAA should select the vessel discharge regulation proposed under alternative C, which extended the discharge ban to all large vessels traveling through OCNMS.

Response: Alternative C considered a broader prohibition of discharges from additional vessel classes. While a discharge ban on all large vessels would reduce the volume of wastewater discharged to the sanctuary and would avoid singling out one industry ( i.e., cruise ships) for regulation, alternative C was not selected as the preferred alternative for addressing vessel discharges because vessels other than cruise ships generate a significantly smaller effluent discharge volume in comparison to cruise ships. Cruise ships carry numerous passengers, whereas most other large vessels traversing or working in the sanctuary have few passengers, if any, and small crews. Additionally, there are specific, non-regulatory actions proposed in the action plans that would address discharges from other types of vessels. NOAA plans to continue to assess potential impacts of vessel discharges and will reevaluate OCNMS regulations during the next review of its management plan and regulations, or sooner if significant issues associated with vessel discharges are identified.

Comment: The analysis of effects of cruise ship discharge on the sanctuary environment that is provided in the draft EA and proposed rule is inadequate, inaccurate and overlooks several major issues related to dilution, the use of Advanced Wastewater Treatment Systems (AWTS), and the level of current research available on the environmental impacts of cruise ship discharges.

Response: NOAA corrected inaccuracies and revised the analysis of cruise ship discharges to incorporate additional information and research findings in the EA. Changes were also incorporated into the preamble to the final rule but NOAA has retained the cruise ship discharge prohibition in the final rule. NOAA agrees that properly functioning AWTS produce effluent with lower contaminant loads than effluent from traditional marine sanitation devices (MSDs). NOAA's analysis revealed, however, that AWTS are not always functioning properly and are not consistently used on cruise ships where they are installed. NOAA contends that the most effective protection for water quality in the sanctuary is achieved through the cruise ship discharge prohibition included in the proposed rule. Analysis in the EA indicates that this prohibition has a negligible effect on the industry, given the average transit time of 1.2 hours through the sanctuary and current industry practice to avoid discharges into sanctuary waters.

Comment: The proposed rule is inconsistent with Executive Order 13563 because the cost/benefit analysis of the proposed cruise ship discharge regulation is inadequate.

Response: In the FMP/EA, NOAA modified the analysis of environmental and socioeconomic impacts and costs of the proposed ban on cruise ship discharges in OCNMS and has complied with applicable cost-benefit analysis requirements. There is essentially no operational cost to the industry from the implementation of this regulation. The regulation generates the benefits of regulatory clarity, regulatory consistency among marine sanctuaries on the west coast, and a more precautionary management approach to a marine protected area of national significance. The regulation is consistent with Executive Order 13563.

Comment: The qualifier “clean” as defined in section 922.151 effectively establishes an unattainable “non-detect limit” for any constituent discharged by a cruise ship.

Response: NOAA agrees that the term “clean” needs to be better explained and has therefore added a definition of “harmful matter” in the final rule. The definition of “harmful matter” is consistent with the definitions used at other national marine sanctuaries. NOAA believes that this additional clarification addresses the concern regarding the feasibility of the proposed regulation.

Comment: NOAA should consider an approach that provides for black water and gray water discharges that are treated to levels that are scientifically acceptable.

Response: Establishment of performance standards for cruise ship discharges in OCNMS would create an impractical level of regulatory enforcement complexity applying to a minor portion of the vessels' operating area. For example, performance standards, in the form of effluent limitations, have been established by the state of Alaska. Alaska regulations allow discharge only from AWTS, not traditional MSDs, and include differing limits (maximum values for a variety of effluent parameters) based on the type (manufacturer) of AWTS and operation of the vessel (in transit > knots or not). These regulations also define differing sampling/analysis frequencies for various parameters. Because cruise ships have an average transit time of 1.2 hours in OCNMS, performance standards for discharges to sanctuary waters are not warranted. The EPA and the state of Washington set water quality standards that apply to sanctuary waters within the state's waters. However, there are currently no standards that apply to sanctuary waters beyond 3 miles which are federal waters.

Comment: NOAA should make sure that this regulation, including the definition of cruise ship, is consistent with other regulations, including the EPA's Vessel General Permit.

Response: National marine sanctuaries are marine protected areas of national significance and often have regulations that are more restrictive than other areas. This is consistent with the mandate of the NMSA. The FMP/EA identifies a complex set of international, federal, and state vessel discharge regulations with inconsistent requirements that differ based on various factors, including country of registration, wastewater stream, treatment systems used, monitoring implemented, operation of the vessel, and location of the discharge. Various definitions for cruise ship are used in federal and state regulations. The EPA in the Vessel General Permit (VGP) provides definitions for medium cruise ships (authorized to carry 100 to 499 people for hire) and large cruise ships (authorized to carry 500 people or more for hire). VGP provisions cover only portions of the sanctuary within 3 miles from shore. U.S. Coast Guard regulates cruise ships as passenger vessels over 100 gross tons, carrying more than 12 passengers for hire, making a voyage lasting more than 24 hours. Given the inconsistency among the various definitions, NOAA will continue to use the definition of cruise ships established in the regulations of the four national marine sanctuaries off the coast of California.

Comment: The description of allowed discharges in the proposed cruise ship discharge regulation does not account for all non-discretionary discharges, which ban discharges that cannot be terminated from vessels ( e.g. leachate from anti-fouling hull coatings, cathodic protection, etc.)

Response: The cruise ship discharge regulation does not prohibit leachate from anti-fouling hull coatings or discharges from cathodic protection. Anti-fouling hull coatings are regulated as pesticides by the EPA. NOAA considers such leachates to be water generated by routine vessel operations, and as such they are an allowable discharge in OCNMS regulations (922.152(a)(2)(i)(C)).

Comment: NOAA should not prohibit discharging or depositing material from beyond the boundary of the sanctuary that subsequently enters the sanctuary and injures a sanctuary resource or quality.

Response: Activities taking place beyond sanctuary boundaries are subject to this regulation only if the discharge injures a sanctuary resource or quality within the sanctuary. This is not a new regulation and has been in place since 1994.

Comment: NOAA should stay abreast to the routes of cruise ships and if an area of the sanctuary is scheduled to receive an immense amount of traffic, NOAA should intervene and attempt to redirect the routes.

Response: NOAA is aware of cruise ship traffic patterns within the sanctuary and monitors them routinely through the Area To Be Avoided (ATBA) compliance monitoring. Assuming that cruise ships continue their high rate of compliance with the voluntary ATBA, cruise ship routes will remain well offshore where deep and dynamic marine waters will mitigate impacts of discharges. As they transit through the northern waters of the sanctuary at the western entrance to the Strait of Juan de Fuca, cruise ships follow established vessel traffic lanes that are designed to facilitate safe passage of large commercial vessels. NOAA will continue to monitor cruise ship traffic patterns, to evaluate practices, and to assess impacts on the environment.

Comment: NOAA should commit to a programmatic agreement (PA) to address Section 106 of the NHPA compliance in the management plan.

Response: NOAA has committed to developing a programmatic agreement in the FMP (Maritime Heritage Action Plan; Strategy MH1: Cultural Resource Conservation; Activity C). NOAA agrees that the components identified in the comment should be incorporated into this programmatic agreement. NOAA has met requirements under Section 106 to ensure that its FMP is in compliance with the National Historic Preservation Act.

Comment: The protection of cultural resources needs to be incorporated into oil spill response planning, training and GRPs.

Response: These issues are addressed within the context of the Northwest Regional Response Team and the Northwest Area Contingency Plan. NOAA supports consideration of additional approaches to ensure the protection of cultural resources during oil spill response, planning and geographic response plans.

Comment: NOAA needs to assure that cultural resources data is conveyed to the Washington State Department of Archaeology and Historic Preservation (DAHP) and other consulting tribal governments in a format that is compatible with DAHP GIS standards.

Response: NOAA concurs and has edited Maritime Heritage Action Plan, Strategy MH1: Cultural Resource Conservation, Activity B to address the need to develop uniform guidelines/protocols for cultural resource data collection and sharing.

Comment: NOAA should develop work protocols for government-to-government consultation.

Response: While general tribal consultation procedures are documented in section 2.4 of the FMP/EA, NOAA also looks forward to working with individual Coastal Treaty Tribes to develop more specific, individually defined tribal consultation procedures beyond those outlined in the FMP. To support this effort, NOAA added an activity under the Collaborative and Coordinated Sanctuary Management Action Plan, Strategy CCM2: Coastal Treaty Tribes.

Comment: The DMP section on Treaty Trust Responsibility is too heavily focused on treaty rights and the protection of natural resources co-managed by the Tribes and the United States, at the expense of other important tribal interests.

Response: Section 2 focuses on treaty rights and NOAA's fulfillment of U.S. treaty obligations within its statutory mandate and as recommended by the Olympic Coast Intergovernmental Policy Council and OCNMS Advisory Council. This chapter was based on substantial work by members from the four Coastal Treaty Tribes and NOAA. Thus, NOAA did not alter the focus or scope of this chapter because specific guidance was not provided by the Coastal Treaty Tribes.

Comment: The regulation requiring consultation with the tribes should formalize the co-management status of the coast tribes. The Makah Tribal Council proposes that 922.154 be modified.

Response: NOAA recognizes our responsibilities to consult with each Coastal Treaty Tribe on a government-to-government basis. This responsibility is documented in several places in the OCNMS FMP and exists regardless of language in OCNMS regulations. Editing the regulations would not substantively change the requirement to consult. NOAA did not modify this clause in OCNMS regulations.

Comment: When a Coastal Treaty Tribe is involved in a project permitted by another agency, NOAA should be required to consider its fiduciary obligations when deciding whether and how to object or condition that project. The Makah Tribal Council proposes that 922.152(g) be modified.

Response: NOAA did not propose changes to this provision in the January 2011 proposed rulemaking; therefore, a separate rulemaking process would be required to modify this section of OCNMS regulations. Because case law supports the protection of treaty rights and resources when a Federal agency is issuing or authorizing permits, as a matter of policy, NOAA will consider and respond to a tribal government's recommendations when evaluating permit authorizations. NOAA will consider this change during a future review of regulations.

Comment: Requiring a tribe to be an applicant for a permit from NOAA does not adequately reflect its sovereign status.

Response: NOAA does not agree that the requirement to apply for a permit to conduct a prohibited activity does not adequately reflect the sovereign status of an American Indian Tribe. All governmental entities and agencies, federal, state and tribal, are required to obtain a permit to conduct an activity within the sanctuary that would otherwise be prohibited. NOAA issues permits to the sanctuary superintendent to conduct research and other activities that involve prohibited activities such as seafloor disturbance or anchoring. Being an applicant for a permit does not reflect upon the sovereignty of a tribal government and does in fact reflect an equal footing with federal and state agencies including NOAA. It is also important to note that 15 CFR 922.152 (f) specifically recognizes that the prohibited activities in sanctuary regulations do not apply to the exercise of treaty-secured rights.

Comment: Requiring a tribe to be the sole applicant for a sanctuary permit would effectively eliminate projects that require partners with technical expertise and greater financial resources.

Response: NOAA agrees that language in the preamble to the proposed rule created the inappropriate impression that a tribe had to be the sole applicant for a permit in this category. For the final rule, preamble language was edited to reflect that a permit can be issued to the designee of a tribe as certified by the governing body of that tribe, or with a tribe as the sole applicant or a co-applicant. In addition, NOAA expanded the list of activities eligible for this permit category to include those proposed by the Makah Tribal Council.

Comment: The need for the proposed change to the tribal welfare provision of the sanctuary regulations is not adequately explained. The FMP/EA should address the Makah Bay wave energy project or recognize that the coast tribes may prefer jointly sponsored projects that require resources from outside the tribes.

Response: NOAA has modified the preamble to the final rule to more clearly reflect the basis for this regulatory change, a concern that an entity other than a tribal government could apply for a tribal welfare permit without an explicit agreement with or participation of the American Indian tribe. NOAA also added information regarding the Makah Bay wave energy project in Section 6.4.4 of the EA.

A complete list of all references cited herein is available upon request (see ADDRESSES section).

Accordingly, for the reasons discussed in the preamble, the National Oceanic and Atmospheric Administration amends 15 CFR part 922 as follows:

Definitions

As used in this public notice, the term “Convention” means The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption; the term “Convention country” means a country that is a party to the Convention and with which the Convention is in force for the United States; and the term “IASA” means the International Adoption Simplification Act, Public Law 111-287 (2010).

On November 30, 2010, the President signed the IASA into law, modifying the Immigration and Nationality Act (INA) as regards adoptions from Convention countries. Among other changes, the IASA creates a new INA Section 101(b)(1)(G)(iii) to allow U.S. citizens to file an immediate relative petition for a child younger than 18 from a Convention country, provided that child is the natural sibling of a child concurrently or already adopted or being brought to the United States for adoption under INA Sections 101(b)(1)(E)(i), (F)(i), or (G)(i). To qualify as a child who is covered under INA Section 101(b)(1)(G)(iii), a child must be adopted abroad, or be coming to the United States for adoption, by the adoptive parent(s) or prospective adoptive parent(s) of his/her natural sibling. In addition, the child must be otherwise qualified as a Convention adoptee under INA Section 101(b)(1)(G)(i), except that the child is under 18 years of age rather than under 16 years of age, as is required for classification under INA Section 101(b)(1)(G)(i).

The IASA contains an exception at Section 4(b) necessitating a modification of the Department regulation contained in 22 CFR 42.24. Under that section, an alien who is older than 18 years of age nonetheless may be classified under INA Section 101(b)(1)(G)(iii) if he/she turned 18 years of age on or after April 1, 2008 and his/her immediate relative petition is filed not later than November 30, 2012. As currently written, the Department's regulations pertaining to INA Section 101(b)(1)(G) cover exclusively those children whose adoptions will be governed by the Convention. Although aliens qualified under IASA Section 4(b) will be emigrating from a Convention country, the Convention only governs the adoption of children under the age of 18. This rule is necessary to change Department regulations to cover aliens properly qualified under IASA Section 4(b).

The Department is publishing this rule as an interim final rule, and with an effective date less than 30 days from the date of publication, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b) and 553(d)(3). Delaying implementation of this rule would be contrary to the public interest, due to the effect of recent legislation (the International Adoption Simplification Act). Because current Department regulations do not contemplate the adoption of children over the age of 18 in countries party to The Hague Convention on Inter-Country Adoption, the lack of procedural certainty regarding 22 CFR 42.24 could forseeably cause undue confusion and delay for American citizens pursuing their rights to adopt as provided by the IASA. The Department will accept public comments for 30 days after publication.

The Department of State has reviewed this regulation and certifies that this rule will not have a significant economic impact on a substantial number of small entities. The Department of State notes that this regulation, as it exclusively facilitates adoptions by U.S. citizens, will have its greatest effect on individuals and not small businesses. While American Adoption Service Providers (ASPs) are essential to intercountry adoptions in Convention countries, this regulation will have a negligible effect on these ASPs, as the Department of State anticipates that this regulation will allow very few adoptions that would not have already been possible in the absence of this regulation.

Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.

This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets.

The Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. Consistent with Executive Order 12866, the Department does not consider the rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities.

The Department of State has considered this rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirement of Section 5 of Executive Order 13175 does not apply to this rulemaking.

This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

Accordingly, for the reasons set forth in the preamble, 22 CFR part 42 is amended as follows:

This document contains final and temporary regulations amending the Employment Tax Regulations (26 CFR part 31) and the Procedure and Administration Regulations (26 CFR part 301) to extend the FICA and FUTA exceptions for family members and religious sect members to certain entities that are disregarded as separate from their owners for federal tax purposes under § 301.7701-2(c). Section 301.7701-2(c)(2)(i) provides that generally, except as otherwise provided, a business entity that has a single owner and is not a corporation under § 301.7701-2(b) is disregarded as an entity separate from its owner. Prior to 2009, single-member entities disregarded as separate from their owners were generally disregarded for employment taxes and certain other requirements of law arising under subtitle C. An employer is generally defined as the person for whom an individual performs services as an employee. Sections 3401(d), 3121(d), and 3306(a). Prior to 2009, the owner of the disregarded entity was treated as the employer for purposes of employment tax liabilities and all other employment tax obligations related to wages paid to employees performing services for the disregarded entity.

Recent changes to § 301.7701-2(c)(2)(iv) provide that, with respect to wages paid after December 31, 2008, a disregarded entity is treated as a separate entity for purposes of employment taxes imposed under Subtitle C and related reporting requirements. In addition, the separate entity is treated as a corporation for purposes of employment taxes imposed under Subtitle C and related reporting requirements. Therefore, the entity, rather than the owner, is considered to be the employer of any individual performing services for the entity.

Sections 3111 and 3301 of the Code impose FICA and FUTA taxes, respectively, on the employer in an amount equal to a percentage of the wages paid by that employer with respect to employment. Under section 3101, FICA tax is also imposed on the employee. Sections 3121(b) and 3306(c) define employment for FICA and FUTA purposes as any service, of whatever nature, performed by an employee for the person employing him. However, there are some services which are explicitly excepted from the definition of employment. For example, section 3121(b)(3)(A) provides that service performed by a child under the age of 18 in the employ of his father or mother is not considered employment for FICA purposes. Section 3121(b)(3)(B) provides that service performed by an individual under the age of 21 employed by his father or mother, or performed by an individual employed by his spouse or son or daughter (subject to certain conditions) for domestic service in a private home of the employer is not considered employment for FICA purposes. Section 3306(c)(5) provides that service performed by an individual in the employ of his son, daughter, or spouse, and service performed by a child under the age of 21 in the employ of his father or mother are not considered employment for FUTA purposes.

Prior to the recent changes to § 301.7701-2(c), the services a family member performed for a disregarded entity wholly owned by another family member could qualify for the exceptions under sections 3121(b)(3) and 3306(c)(5) if all the requirements were satisfied, as the individual family member owner was treated as the employer. However, due to the recent changes to the regulations, family members can no longer qualify for the FICA and FUTA exceptions that apply to family employment because § 301.7701-2(c)(2)(iv) regards the disregarded entity as a separate entity and treats the separate entity as a corporation for employment tax purposes. Sections 31.3121(b)(3)-1(c) and 31.3306(c)(5)-1(c) explicitly state that services performed in the employ of a corporation are not within the exceptions from employment that apply because of the existence of a family relationship between the employee and the individual employing him.

Section 3127 provides an exception from FICA taxes where both the employer and the employee are members of a religious faith opposed to participation in the Social Security Act. Both the employer and the employee must be members of a recognized religious sect and both must have filed and had approved an application certifying that they are members of a qualifying religious faith. Prior to the recent changes made to § 301.7701-2(c), service performed by a member of a qualifying religious sect for a disregarded entity wholly owned by another member of a qualifying religious sect could qualify for this exception as the individual sect member was considered to be the employer. However, as a result of the recent changes to § 301.7701-2(c)(2)(iv), the disregarded entity is regarded as a separate entity for employment tax purposes and the separate entity is treated as a corporation. As a corporation, the entity cannot be considered a member of a qualifying religious sect. Therefore, the exception cannot apply, as the employer would not be a member of a qualifying religious sect.

Section 301.7701-2(c)(2)(iv) treats disregarded entities as corporations for employment tax purposes. Such entities cannot qualify for the FICA and FUTA exceptions contained in sections 3121(b)(3), 3127, and 3306(c)(5) because the individual owner is no longer considered the employer. The IRS and the Treasury Department did not intend to render these exceptions inapplicable to disregarded entities that were eligible for the exceptions prior to the effective date of the new regulations in § 301.7701-2(c). The inability of these entities to benefit from the exceptions for family employees and members of religious faiths has an adverse impact on small businesses. Accordingly, a change is necessary to correct this problem.

While § 301.7701-2(c)(2)(iv) treats an entity that is disregarded as an entity separate from its owner as a corporation for employment tax purposes, such entity remains disregarded for backup withholding and related information reporting purposes. The preamble to Treasury Decision 9356, 2007-39 I.R.B. 675, which finalized the changes to § 301.7701-2(c) indicates that these regulations do not apply to reportable payments under section 3406. Accordingly, the owner of the disregarded entity is responsible for any backup withholding that is required with respect to reportable payments considered made by the owner rather than the disregarded entity, other than a qualified subchapter S subsidiary. However, the final regulations themselves do not explicitly state that such disregarded entities are not responsible for information reporting and backup withholding. This has caused some confusion as to the responsible party for filing information returns for reportable payments and related backup withholding requirements. Therefore, language has been added to these regulations to clarify the existing rules with respect to backup withholding and related information reporting responsibilities.

The temporary regulations would allow certain disregarded entities under § 301.7701-2 to qualify for the FICA and FUTA exceptions of sections 3121(b)(3), 3127 and 3306(c)(5). The disregarded entity will continue to be treated as a corporation for all employment tax purposes, except the entity will be disregarded for the limited purposes of applying the FICA and FUTA exceptions found in sections 3121(b)(3), 3127 and 3306(c)(5). For purposes of applying these exceptions only, the owner of the disregarded entity will be treated as the employer and the employee will be considered to be an employee of the owner. Additionally, the regulations clarify the existing rule that disregarded entities under § 301.7701-2 are not responsible for backup withholding and information reporting of reportable payments under section 3406. Rather, the owner of a disregarded entity under § 301.7701-2 is responsible for backup withholding and information reporting of reportable payments under section 3406. This does not change the existing rule.

It has been determined that this Treasury Decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this regulation will be 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 Joseph Perera, Office of Associate Chief Counsel (Tax Exempt & Government Entities). However, other personnel from the IRS and Treasury Department participated in their development.

Accordingly, 26 CFR parts 31 and 301 are amended as follows:

Throughout this document, “we,” “us,” and “our” refer to EPA.

Table 1 lists the rules we are approving with the dates that they were adopted or amended by the local air agency and submitted by the California Air Resources Board (CARB).

On April 20, 2009, EPA determined that the submittal for PCAPCD Rule 231 met the completeness criteria in 40 CFR part 51 appendix V, which must be met before formal EPA review. On January 13, 2011, EPA determined that the submittal for PCAPCD Rules 242 and 246 met the completeness criteria in 40 CFR part 51 appendix V, which must be met before formal EPA review. On May 6, 2011, EPA determined that the submittal for SMAQMD Rule 414 met the completeness criteria in 40 CFR part 51 appendix V, which must be met before formal EPA review.

There are no previous versions of Rules 231, 242 and 246 in the SIP. The PCAPCD adopted an earlier version of Rule 231 on October 17, 1994, and CARB submitted it to us on October 19, 1994 but it was later withdrawn. We approved an earlier version of SMAQMD Rule 414 into the SIP on April 20, 1999 (64 FR 19277).

NO X helps produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control NO X emissions. Rule 231 limits emission of NO X and carbon monoxide (CO) from boilers, steam generators and process heaters fueled on liquid or gas fuels that are 5 MMBtu/hour or larger. Rule 242 regulates emissions of NO X and CO from internal combustion engines with a rated brake horse power of 50 or greater. Rule 246 limits NO X emissions from natural gas water heaters rated below 75,000 btu/hour. Rule 414 limits NO X and CO emissions from boilers rated below 1 MMBtu/hour. EPA's technical support documents (TSD) have more information about these rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each NO X or VOC major source in ozone nonattainment areas classified as moderate or above (see sections 182(b)(2) and 182(f)), and must not relax existing requirements in violation of CAA sections 110(l) and 193. SIP rules must also implement Reasonably Available Control Measures (RACM), including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACT), as expeditiously as practicable for nonattainment areas (see CAA section 172(c)(1)). The PCAPCD and SMAQMD regulate ozone nonattainment areas classified as severe for the 8-hour ozone NAAQS (40 CFR 81.305), so Rules 231, 242, 246 and 414 must fulfill RACT and RACM for NO X .

Guidance and policy documents that we use to evaluate enforceability, RACT and RACM requirements consistently include the following:

1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

2. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO X Supplement), 57 FR 55620, November 25, 1992.

3. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

4. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

5. “Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters”, CARB (July 18, 1991).

6. “Alternative Control Techniques Document—NO X Emissions from Industrial/Commercial/Institutional (ICI) Boilers”, US EPA 453/R-94-022 (March 1994).

7. “Alternative Control Techniques Document—NO X Emissions from Utility Boilers”, US EPA 452/R-93-008 (March 1994).

8. “Alternative Control Techniques Document—NO X Emissions from Stationary Reciprocating Internal Combustion Engines”, US EPA 453/R-93-032 (July 1993).

9. “Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Stationary Spark-Ignited Internal Combustion Engines”, CARB (November 2001).

We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. We are not evaluating the RACM requirement in this action but believe that PCAPCD and SMAQMD are required to evaluate any reasonably available control measures for the sources covered by these rules. We believe Rule 231 implements RACT. We believe there are no sources subject to Rule 242 that exceed the major source threshold (25 tpy), thus it is not required to meet RACT for NO X . For this reason, we are not making a determination on RACT for Rule 242 in this action. Rules 246 and 414 are not subject to RACT requirements because they are applicable to sources that are too small to exceed the major source threshold. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that we recommend for the next time the local agencies modify the rules.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by December 1, 2011, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on January 3, 2012. This will incorporate these rules into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 3, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

On June 3, 2011 (FR 32113), EPA proposed to approve the following rules into the California SIP.

We proposed to approve these rules because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted that change our assessment that the submitted rules comply with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these rules into the California SIP.

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

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

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

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

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

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

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

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

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

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

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

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

A. Background

GSA is amending the FPMR (41 CFR Chapter 101) by removing the provisions regarding priorities for use of Government supply sources. The Federal Acquisition Regulation (FAR) is considered the primary regulation for use by all Federal executive agencies in their acquisition of supplies and services with appropriated funds; therefore, policies that repeat, paraphrase, or restate the FAR are unnecessary.

Executive Orders (E.O.s) 12866 and 13563 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). E.O. 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.

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the revisions are not considered substantive. This final rule is also exempt from the Regulatory Flexibility Act per 5 U.S.C. 553(a)(2) because it applies to agency management or personnel. However, this final rule is being published to provide transparency in the promulgation of Federal policies.

The Paperwork Reduction Act does not apply because the final rule does not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule is exempt from Congressional review under 5 U.S.C. 801 since it relates solely to agency management and personnel.

For the reasons set forth in the preamble, GSA amends 41 CFR Chapter 101 as follows:

A. Background

A proposed rule was published in the Federal Register on June 26, 2009 (74 FR 30493). Three changes were proposed.

Two of the proposed changes, regarding the handling of scrap property and an administrative change, did not elicit any significant objections during the public review period and were incorporated into a final rule published in the Federal Register on May 6, 2010 (75 FR 24820).

The most significant change was the proposal to remove the exchange/sale prohibition on aircraft and airframe structural components subject to certain conditions. GSA received eleven comments on that proposal. Due to the interest in this proposal, GSA took this intervening time to carefully review and consider these comments and objections. Public comments may be found at http://www.regulations.gov and searching for the applicable docket: GSA-FMR-2009-0002.

After careful review and consideration, GSA is choosing to codify the removal of the exchange/sale prohibition on aircraft and airframe structural components. In short, GSA has determined that removing the prohibition is in the best interest of the Government and will reduce agencies' costs of managing their aircraft fleets. GSA understands the intent of the property management legislation at 40 U.S.C. 501 et seq. to require that property-holding agencies make full use of property already acquired in support of their mission. The exchange/sale authority, codified at 40 U.S.C. 503, supports that intent by allowing agencies to make use of their investment in these valuable assets and does not provide any commodity restrictions to this authority.

The rationale for removing aircraft from the prohibited list was provided in the “Background” section of the proposed rule is still considered valid and relevant. This rationale is reprinted below:

Thus, for these reasons, this final rule revises the regulation to remove aircraft and aircraft structural components from the exchange/sale prohibited list as long as such transactions are conducted in accordance with provisions found at FMR part 102-33 (41 CFR part 102-33). Some specific comments received in response to the proposed rule, and GSA's response to those comments, are provided below:

Comment: The proposed changes are unnecessary, unwise, and would constitute an evasion of congressional appropriation authority.

GSA Response: The proposed changes have been requested by the Federal property managers and aviation managers as a way to better manage aviation assets. As the Federal officials responsible for safely maintaining our Federal aviation assets in a state of readiness, GSA disagrees with the characterization that these changes are “unnecessary” and “unwise.” Also, GSA notes that Congress has specifically authorized the exchange/sale program under Title 40 U.S.C. 503. Therefore, this FMR change does not introduce the ability to conduct an exchange/sale transaction, nor evade Congressional authority; it furthers an agency's ability to conduct an exchange/sale transaction as provided by law.

Comment: Furthermore, if enacted, this proposed change would further diminish the amount of personal property available to the State Agencies to place in public use. (10 similar comments).

GSA Response: As discussed in other documents and in discussions with our stakeholders, GSA has never denied a deviation request for the exchange/sale of these types of assets. These aviation assets were maintained on the prohibited list simply so that GSA could better manage these assets in compliance with GSA responsibilities under OMB Circular A-126, Section 13c. In addition, FMR § 102-37.40 requires that property provided to donation recipients be Federal surplus. Conversely, FMR § 102-39.65(b) states that property available for exchange/sale cannot be excess or surplus. Thus, this proposed change cannot diminish the amount of personal property available for donation to State Agencies, because the change only applies to personal property that was not eligible for donation in the first place.

Comment: Generally characterized as `This rule change will hurt Federal civilian agencies who are not exchange/selling aviation assets because they will not be able to obtain excess aviation assets from other Federal agencies because of the notional rush by the holding agency to exchange/sell all possible assets to satisfy its aviation requirements.' (3 comments).

GSA Response: Federal agencies are tasked to maintain their aviation assets to meet their agency missions, often with insufficient funds to meet all requirements. In order to meet their programmatic needs, they are encouraged to seek any funding solution, including the exchange/sale authority authorized under law.

Comment: Generally characterized as `The exchange/sale program only returns “pennies on the dollar” to the agency, whereas disposing of the asset through other methods provides a greater benefit to other agencies or donees.' (3 comments).

GSA Response: It is in agencies' best interests to maximize their available funds by obtaining the best return on their personal property investments. Therefore, there is little support for the comment that agencies would intentionally fund their aviation requirements by selling their aviation assets for anything less than the best price.

Also, GSA notes that the exchange/sale regulation at FMR § 102-39.55 allows agencies to offer personal property through either a reimbursable transfer with another agency, or through a negotiated sale with a State Agencies for Surplus Property (SASP). GSA is not aware of any such request by an agency or SASP offering to pay below-fair-market value to obtain aviation property. If the holding agency were truly selling items at just pennies on the dollar, then we would expect other Federal agencies and SASPs to be eager to obtain such assets at bargain prices. However, GSA has never observed such a transaction, leading to the conclusion that agencies are not willing to sell aircraft for minimal, below-fair-market value prices.

Comment: Generally characterized as “the exchange/sale authorities should be subordinate to the donation authorities.” (2 comments)

GSA Response: GSA recognizes the vast benefits provided to the nation by the utilization and donation programs. At the same time, GSA also recognizes that under the expressed direction of Congress contained in 40 U.S.C. 503, the authority to conduct exchange/sale transactions is granted directly to Federal agencies (40 U.S.C. 503(a)). On the other hand the donation program authority is granted exclusively to GSA, with such transfers being made at GSA's discretion (40 U.S.C. 549(b)). GSA therefore rejects the argument that its discretionary authority takes precedence over statutory authority granted to all other agencies. GSA also reiterates the argument that donation authority applies only to surplus property, whereas exchange/sale authority applies to non-surplus property, rendering moot any discussion of subordinate and superior authorities.

Finally, there is the issue of fire control systems and guided missiles. Over the past several years, GSA has worked with Department of Defense (DOD) agencies on deviations to allow the exchange/sale of fire control systems (FSC Group 12) and guided missiles (FSC Group 14). These assets are also on the prohibited list at FMR § 102-39.60(a). GSA observes that the “Note” to this section removes the requirement for deviations from the prohibited list for DOD transactions of these FSC Groups when otherwise meeting DOD and Federal laws and regulations. Because other, more stringent DOD and Federal laws are in place to prevent the inappropriate use of these assets outside their intended use, GSA sees no value in keeping these on the exchange/sale prohibited list. For these reasons, and since there would be no other legitimate, competing interests in obtaining this property outside the realm in which DOD operates, GSA does not see a need to obtain public comment on this matter through the publication of a proposed rule.

Executive Orders 12866 and 13563 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 is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the revisions are not considered substantive. This final rule is also exempt from the Regulatory Flexibility Act per 5 U.S.C. 553(a)(2) because it applies to agency management or personnel. However, this final rule is being published to provide transparency in the promulgation of Federal policies.

The Paperwork Reduction Act does not apply because the changes to the FMR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule is exempt from Congressional review under 5 U.S.C. 801 since it relates solely to agency management and personnel.

For the reasons set forth in the preamble, GSA amends 41 CFR part 102-39 as set forth below:

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

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

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

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

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

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

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

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

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

Accordingly, 44 CFR part 64 is amended as follows:

This is a synopsis of the Commission's Report and Order, adopted October 6, 2011, and released October 7, 2011. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1 (800) 378-3160 or via email http://www.BCPIWEB.com. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). The Commission will not send a copy of this Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because these allotments were previously reported.

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

This is a synopsis of the Commission's Order ( Order ), document FCC 11-159, adopted October 20, 2011, and released October 20, 2011, in CG Docket No. 06-181. Simultaneously with the Order, the Commission also issued a Memorandum Opinion and Order in CG Docket No. 06-81, and Notice of Proposed Rulemaking in CG Docket No. 11-175. The full text of document FCC 11-159 and copies of any subsequently filed documents in this matter will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or Internet: http://www.bcpiweb.com. Document FCC 11-159 can also be downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro/caption.

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

Document FCC 11-159 does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

1. As originally enacted, section 713(d)(3) of the Act authorized the Commission to grant an individual exemption upon a showing that providing closed captioning “would result in an undue burden.” Congress provided guidance to the Commission on how it should evaluate these captioning exemptions by setting forth, in section 713(e) of the Act, the following “four factors to be considered” in determining whether providing closed captioning “would result in an undue economic burden”: (1) The nature and cost of the closed captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the financial resources of the provider or program owner; and (4) the type of operations of the provider or program owner.

2. In the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Congress amended section 713(d)(3) of the Act by replacing the term “undue burden” with the term “economically burdensome.” Specifically, amended section 713(d)(3) of the Act states: “A provider of video programming or program owner may petition the Commission for an exemption from the requirements of this section, and the Commission may grant such petition upon a showing that the requirements contained in this section would be economically burdensome.”

3. In document FCC 11-159, the Commission provides guidance on how it will construe, on an interim basis, the term “economically burdensome” for purposes of evaluating requests for individual exemptions under section 713(d)(3) of the Act, as amended by the CVAA. The Commission concludes that Congress, when it enacted the CVAA, intended for the Commission to continue using the undue burden factors contained in 713(e) of the Act, as interpreted by the Commission and reflected in Commission rules and precedent, for individual exemption petitions, rather than to make a substantive change to this standard.

4. The Commission also directs CGB, with respect to all petitions filed or re-filed subsequent to October 8, 2010, the date on which the CVAA became law, to use the original factors set forth in section 713(e) of the Act, as codified in §§ 79.1(f)(2) and (3) of the Commission's rules, in accordance with the guidance provided in the instant order, when making determinations as to whether an individual petitioner has made a documented showing that requiring closed captioning would be “economically burdensome.”

The Commission will send a copy of document FCC 11-159 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

5. Pursuant to the authority contained in sections 4, 5, 303, and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 154, 155, 303, and 613, and §§ 1.115 and 1.411 of the Commission's rules, 47 CFR 1.115, 1.411, document FCC 11-159 Is Adopted.

This is a synopsis of the Commission's Memorandum Opinion and Order ( MO&O ), document FCC 11-159, adopted October 20, 2011, and released October 20, 2011, in CG Docket No. 06-181. Simultaneously with the MO&O, the Commission also issued an Order (Order) in CG Docket No. 06-181, and a Notice of Proposed Rulemaking ( NPRM ) in CG Docket No. 11-175. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send copies of FCC 11-159 via certified mail, return receipt requested to counsel for or the last known address for each of the petitioners named in this matter by November 3, 2011. Each of the petitions noted in document FCC 11-159 Appendix A that were the subject of the Application for Review shall be dismissed by January 18, 2012. Affected petitioners may file new petitions in accordance with the statute and Commission rules by January 18, 2012. Any such petitioner who does not file a new petition in accordance with the statute and Commission rules by January 18, 2012 must begin providing closed captioning of its programming beginning on January 19, 2012. The full text of document FCC 11-159 and copies of any subsequently filed documents in this matter will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or Internet: http://www.bcpiweb.com. Document FCC 11-159 can also be downloaded in Word or Portable Document Format (PDF) at: http://www.fcc.gov/cgb/dro/caption. Appendix A associated with FCC 11-159 listing the Bureau Letter Orders is available at http://www.fcc.gov/cgb/dro/caption.

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

Document FCC 11-159 does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

1. Section 713 of the Act allows the Commission to grant individual exemptions, which are to be considered on a case-by-case basis upon submission of a petition to the Commission. Section 713(d)(3) of the Act, as originally enacted, permitted the Commission to grant such individual closed captioning exemptions to a provider, owner, or producer of video programming that petitioned the Commission, upon a showing that the closed caption requirements would “result in an undue burden.” Section 713(e) of the Act defines “undue burden” to mean “significant difficulty or expense,” and directs the Commission to consider the following factors in making an undue burden determination: (1) The nature and cost of the closed captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the financial resources of the provider or program owner; and (4) the type of operations of the provider or program owner. The petitioner also may present for the Commission's consideration “any other factors the petitioner deems relevant to the Commission's final determination,” including alternatives that might constitute a reasonable substitute for closed captioning.

2. Commission rules require the Commission to place any petition seeking an individual exemption from the closed captioning requirements under section 713(d)(3) of the Act on public notice, after which parties are given an opportunity to provide comments and petitioners are given an opportunity to reply to those comments. During the pendency of the petition, the programming that is the subject of the petition is exempt from the closed captioning rules.

3. On September 11, 2006, the Consumer and Governmental Affairs Bureau (CGB) released an Order ( Anglers Order ), 21 FCC Rcd 10094, granting exemptions to two petitioners—Anglers for Christ Ministries, Inc., and New Beginning Ministries—in a manner that deviated from the Act and the Commission's rules. The CGB then granted 301 individual petitions for exemption relying on the new standard established in the Anglers Order, also in a manner that deviated from the Act and the Commission's rules.

4. On October 12, 2006, a group of consumer organizations filed an Application for Review and a Petition for Emergency Stay requesting the Commission to rescind the Anglers Order and the hundreds of exemptions that were based on the Anglers Order.

5. In FCC 11-159, the Commission grants the relief sought in the Application for Review, and reverses exemptions granted to Anglers and New Beginning in the Anglers Order. The Commission concludes that the reasoning used in the Anglers Order for evaluating requests for exemption from the closed captioning rules on the basis of undue burden under section 713(d)(3) is not supported by the Act, its legislative history, or the Commission's implementing regulations and Orders. Specifically, the Commission reverses these exemptions because it finds that: (1) It was not appropriate to grant exemptions based on the non-commercial nature and lack of remunerative value of Angler's and New Beginning's programming; (2) the Anglers Order should not have placed substantial reliance on Anglers' and New Beginning's non-profit status; (3) the presumption created in the Anglers Order, that future exemptions would be granted to non-profit entities for whom the provision of closed captions would “curtail other activities important to [their] mission,” is an unworkable standard and not an appropriate factor for undue burden determinations; (4) neither Anglers nor New Beginning should have received permanent exemptions; and (5) the Anglers Order failed to consider whether petitioners solicited captioning assistance from their video programming distributors, as required by Commission precedent. Accordingly, the Commission rejects the undue burden criteria used in Anglers, and affirms instead the undue burden analyses previously applied to decisions that predate the Anglers Order.

6. In addition, the Commission reverses the hundreds of exemptions that were based on the rationale in the Anglers Order. As a substantive matter, the Commission finds that each of these exemptions cannot stand because each relied on the Anglers Order's rationale. Additionally, the Commission reverses the exemptions because none of the orders analyzed the individual circumstances of the petitioners under the “undue burden” criteria, as required under the Act and the Commission's rules. Finally, the orders were procedurally flawed because they waived, without justification, the Commission's public notice requirements for undue burden exemption petitions.

7. Each of the petitioners affected by document FCC 11-159 shall be provided with a copy of document FCC 11-159 and notified, by letter sent by first class mail, that it may file a new petition for a closed captioning exemption, consistent with the requirements of the Commission's rules and document FCC 11-159.

The Commission will send a copy of document FCC 11-159 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

Pursuant to the authority contained in sections 4, 5, 303, and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 154, 155, 303, and 613, and §§ 1.115 and 1.411 of the Commission's rules, 47 CFR 1.115, 1.411, FCC 11-159 is adopted.

Pursuant to § 1.115 of the Commission's rules, 47 CFR 1.115, the Consumer Organizations' Application for Review of the Anglers Order and the Bureau Letter Orders is granted to the extent indicated in the item.

The Petition for Emergency Stay, filed by the Consumer Organizations is dismissed as moot.