Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2010-0189, dated September 23, 2010, to correct an unsafe condition for the Agusta Model AB139 and AW139 helicopters. EASA advises of some in-flight emergencies resulting from internal corrosion of the MAU2 circuit card assemblies. Analysis of the in-flight emergencies identified salt water and extreme moisture as contributory factors. The corrosion resulted from the MAU2 being exposed to external moisture as a result of the ventilation duct installation that routes external air directly on the MAU2 modules. When exposed to high levels of moisture, EASA states the MAU can cause the system to provide false indications or misleading data to be displayed to the flight crew. Also, misleading data may cause disengagement of the flight director modes of the autopilot or other alerting system anomalies. They also state that these failures and anomalies would significantly increase the workload of the flight crew and could ultimately lead to loss of control of the helicopter.

Agusta has issued Bollettino Tecnico No. 139-166, dated April 6, 2009 (BT), which specifies inspecting the MAU2 cards to ensure they are corrosion free. Also, the BT specifies procedures for modifying to reroute the direct flow of air coming from the ventilation duct outlet MAU2 ventilation away from the MAU2 cabinet and modules. EASA classified this service information as mandatory and issued AD No. 2010-0189, dated September 23, 2010, to ensure the continued airworthiness of these helicopters.

These helicopters have been approved by the aviation authority of Italy and are approved for operation in the United States. Pursuant to our bilateral agreement with Italy, EASA, their technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

We do not require reporting inspection results nor coordinating with the manufacturer in returning modules as indicated in the BT that EASA references. Also, we have used a different compliance time for the action.

This unsafe condition is likely to exist or develop on other helicopters of the same type design. Therefore, this AD is being issued to detect corrosion of certain modules, to prevent the display of misleading data, disengagement of the flight director modes of the autopilot or other alert system anomalies, increased workload of the flight crew, and subsequent loss of control of the helicopter. This AD requires, at a specified interval, inspecting certain modules and related connectors for corrosion. If there is corrosion on the connectors, this AD requires cleaning the connectors before further flight. If there is corrosion on a module, this AD requires replacing the module with an airworthy module. This AD also requires modifying the MAU2 ventilation duct.

The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability of the helicopter. Therefore, inspecting, replacing, or modifying certain modules is required within a very short compliance time, 30 hours time-in-service or 1 month, whichever occurs first, so this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD will affect about 26 helicopters of U.S. registry. We also estimate that it will take 6 work hours to remove, inspect the modules for corrosion, and replace the corroded modules, and 2 work hours to reroute the ventilation tube. The average labor rate is $85 per work-hour. Required parts will cost about $360,738 per helicopter to replace corroded modules and $440 for parts to modify the ventilation tube. Based on these figures, we estimate the cost of this AD on U.S. operators is $361,858 per helicopter or $9,408,308 for the U.S. fleet, assuming the modules would be replaced on the entire fleet.

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2011-1036; Directorate Identifier 2010-SW-088-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light 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 with FAA personnel concerning this AD. Using the search function of the docket Web site, you can find and read the comments to any of our dockets, including the name of the individual who sent the comment. You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

We have 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 that the regulation:

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

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

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

We prepared an economic evaluation of the estimated costs to comply with this AD. See the AD docket to examine the economic evaluation.

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.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2010-0268-E, dated December 21, 2010, to correct an unsafe condition for the ECD Model MBB-BK 117 C-2 helicopters. EASA advises of reports that on some helicopters a too high current flow was detected when one generator was deactivated (for example, during the ENGINE POWER CHECK). EASA also advises that this situation, if not detected and corrected, could lead to failure of the generator, likely resulting in loss of electrical power and inducing loss of systems that are necessary for safe flight. Therefore, the EASA AD requires additional RFM procedures to include visual monitoring of the electrical power display during switching of a generator. Also, EASA advises that their AD is an interim measure pending the development of a final solution that will prevent this particular mode of generator failure.

ECD has issued Alert Service Bulletin ASB MBB BK117 C-2-24A-008, dated December 20, 2010 (ASB). The ASB specifies inserting certain pages from the ASB into the RFM to alert operators to visually monitor the power display generator amperes (GEN AMPS) on the Vehicle and Engine Multifunction Display (VEMD) for too high a current flow when a generator has been deactivated; for example, during the ENGINE POWER CHECK. In such a situation, the revised RFM provides instructions for switching off the two main electrical buses (BUS TIEs) on the overhead panel to prevent the operating generator from being damaged. The ASB states that failure of the generator could result in subsequent loss of electrical power and loss of systems. EASA classified this ASB as mandatory and issued AD No. 2010-0268-E, dated December 21, 2010, to ensure the continued airworthiness of these helicopters.

These helicopters have been approved by the aviation authority of the Federal Republic of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with the Federal Republic of Germany, EASA, their technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of this same type design.

This unsafe condition is likely to exist or develop on other helicopters of the same type design. This amendment adopts a new AD for ECD Model MBB-BK 117 C-2 helicopters. This action requires revising the Emergency Procedures and Performance Data sections of the RFM BK117 C-2 by copying or cutting out the temporary pages 7, 8, and 11 of the ASB and inserting the pages into RFM BK 117 C-2. This amendment is prompted by reports of too high a current flow when one generator is deactivated. The actions specified in this AD are intended to revise the RFM by inserting temporary pages into the Emergency Procedures and Performance Data sections. The revisions to the RFM are intended to alert pilots to visually monitor the power display GEN AMPS on the VEMD when a generator is deactivated to detect too high a current flow and to switch off the two BUS TIEs on the overhead panel to prevent the operating generator from being damaged. Accomplish the actions by copying or cutting out pages 7, 8, and 11 of the ASB described previously and inserting them into the Emergency Procedures and Performance Data sections of the RFM.

The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability or structural integrity of the helicopter. Therefore, revising the Emergency and Performance Data sections of the RFM is required before further flight, and this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD will affect about 232 helicopters of U.S. registry. We also estimate that it will take a minimal amount of time to copy and insert the pages into the RFM. Therefore, the cost of the AD will be minimal.

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2011-1075; Directorate Identifier 2011-SW-011-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light 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 with FAA personnel concerning this AD. Using the search function of the docket Web site, you can find and read the comments to any of our dockets, including the name of the individual who sent the comment. You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

We have 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 that the regulation:

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

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

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; 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.

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.

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

On December 21, 2009, we issued AD 2010-03-03, Amendment 39-16186 (75 FR 5681, February 4, 2010), to require at specified intervals washing the upper and lower surfaces of each blade and visually inspecting the grip plates, doublers, and the remaining upper and lower surfaces of the blades in the area from blade stations 24.5 to 40 for an edge void, corrosion, or a crack using a 3x power or higher magnifying glass. That AD was prompted by two reports of fatigue cracks on blades installed on Model 212 helicopters. The cause of the cracks has been attributed to inadequate adhesive bonding during manufacture in the area between the grip plate and mating doubler surface. A crack first appears in the grip plate, which can be detected visually with the blade installed on the helicopter. That condition, if not detected, could result in loss of a blade and subsequent loss of control of the helicopter.

Since issuing AD 2010-03-03 (75 FR 5681, February 4, 2010), we have received another report of a fatigue crack on a blade installed on a Model 212 helicopter. The crack at the blade attachment bolt hole has been attributed to a large disbond, which developed in the adhesive between the lower grip plate and mating doubler. The lower grip plate was not cracked. The disbond initiated at the tip of the grip plate and propagated to the blade attachment bolt hole. Corrosion was found on the doubler suggesting an edge void was present for an extended amount of time and went undetected by the inspections being performed by the operator. Further analysis and investigation by the manufacturer have revealed that the inspections on the blade as required by the current AD need to be expanded and performed at an increased frequency and on additional part-numbered blades of similar design and manufacture, which can also be installed on the Model 210 and 212 helicopters.

We have also determined that blade part numbers listed in the current AD may also be installed on Model 205A-1 helicopters modified in accordance with Supplemental Type Certificate (STC) No. SH5132NM or SH5976NM. The affected blade can also be installed on all helicopter serial numbers for the affected helicopter models. Therefore, this amendment retains the same requirements as AD 2010-03-03 (75 FR 5681, February 4, 2010) for the affected part-numbered blades but increases the scope and frequency of the inspections and expands the applicability to include the Model 205A-1 and 210 helicopters, additional blade part numbers, and all helicopter serial numbers for the affected helicopter models. Finally, after further investigation, we discovered the requirement of the current AD to apply the oil only to the specified inspection areas was not the original intent of the AD. Therefore, this AD also requires applying a light coat of preservative oil (C-125) to all surfaces of the blade to prevent corrosion from the process of washing the blade surfaces in preparation for the inspections in addition to those areas as required in the current AD.

We have reviewed Bell Helicopter Alert Service Bulletin (ASB) No. 205B-08-51 and ASB No. 212-08-130, both Revision B and dated January 11, 2011, applicable to Model 205B and Model 212 helicopters, respectively, and ASB No. 210-08-03, Revision B, dated January 10, 2011, applicable to Model 210 helicopters, which describe procedures for initial and repetitive inspections of certain part-numbered blades on certain serial-numbered helicopters for signs of an edge void, corrosion, or a crack, including a hair-line crack in the blade paint finish in the inspection area as shown in Figure 1 of the ASBs between blade stations 24.5 and 85.

This AD differs from the ASBs as follows:

• We specifically require only wiping each of the bond lines at the edges of both grip plates and each of the layered doublers (bond lines) on the upper and lower surfaces of each affected blade with an alcohol-soaked cloth. This is required immediately before performing a visual inspection using a 3x or higher magnifying glass and a bright light to detect an edge delamination along any of the bond lines. This was done to avoid any possible confusion with having to wipe the entire surface blade area from blade station 24.5 to 85, which could make performing a reliable inspection difficult. The ASBs state to “wipe the area to be inspected with an alcohol-soaked cloth.”

• The ASBs use the phrase “bond lines between doublers, grip plates, and skin” to describe the bond lines, and we use “bond lines at the edges of both grip plates and each of the layer doublers.”

• The ASBs use the phrase “cracks in the bond lines between doublers or grip plates” to describe a separation of the doubler or grip plate along an edge, and we use the term “edge delamination.”

• We do not specify each helicopter serial number (S/N) in our AD; the ASBs do specify the helicopter S/Ns.

Since an unsafe condition has been identified that is likely to exist or develop on other helicopters of these same type designs, this AD supersedes AD 2010-03-03 (75 FR 5681, February 4, 2010), retaining the same requirements for the affected part-numbered blades but increasing the scope and frequency of the inspections and expanding the applicability to include the Model 205A-1 and 210 helicopters, additional blade part numbers, and all helicopter serial numbers for the affected helicopter models.

The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the structural integrity and controllability of the helicopter. Therefore, the AD must be issued immediately to require the following actions within 25 hours time-in-service (TIS) and thereafter at intervals not to exceed 25 hours TIS:

• Washing the upper and lower blade surfaces using a solution of cleaning compound (C-318) and water.

• Visually inspecting each of the upper and lower grip plates and doublers of the blade for their entire length and chord width for an edge void, any corrosion, or a crack.

• Wiping each of the bond lines at the edges of both grip plates and each of the layered doublers (bond lines) on the upper and lower surfaces of each affected blade with an alcohol-soaked cloth (C-385) in the area from blade stations 24.5 to 85.

• Immediately thereafter, using a 3x power or higher magnifying glass and a bright light, visually inspecting each of the bond lines on the upper and lower surfaces of the blade in the inspection area for any edge delamination, as indicated by a dark line located along any bond line, or a crack in the paint finish.

• Applying a light coat of preservative oil (C-125) to all surfaces of the blade.

• Removing paint from areas in which an edge delamination along any bond line of a grip plate or doubler, or a crack in the blade paint finish is discovered, by sanding with 180-220 grit paper to determine if an edge void or a crack exists in the blade.

• Replacing any blade that has a crack in any grip plate or doubler with an airworthy blade.

• Replacing any blade that has an edge void or any corrosion with an airworthy blade or repairing the blade if the damage is within the maximum repair damage limits. The maximum repair damage limitations are contained in the applicable Component and Repair Overhaul Manual.

• Replacing any blade that has a crack in the blade skin with an airworthy blade, or repairing the blade if the damage is within the maximum repair damage limits.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD will affect 132 helicopters in the U.S. registry. We also estimate that washing and visually inspecting each blade will take about 1 work hour. If an edge void, corrosion, or a crack is found, replacing a blade with an airworthy blade will take about 24 work hours. The average labor rate is $85 per work hour. Required parts will cost about $85,597 for a replacement blade. Based on these figures, we estimate the total cost of the AD on U.S. operators to be $356,917, assuming that 24 inspections are done each year on each helicopter and that 1 blade is replaced.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and an opportunity for public comment. We invite you to send any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number “FAA-2011-1182; Directorate Identifier 2010-SW-010-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light 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 concerning this AD. Using the search function of the docket Web site, you can find and read the comments to any of our dockets, including the name of the individual who sent the comment. You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

We have 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 that the regulation:

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

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

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

We prepared an economic evaluation of the estimated costs to comply with this AD. See the AD docket to examine the economic evaluation.

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.

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

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2008-0097, dated May 20, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

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

Sicma Aero Seat has issued the following service information. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

• Sicma Aero Seat Service Bulletin 94-25-011, Revision 3, dated June 30, 2008.

• Sicma Aero Seat Service Bulletin 94-25-012, Revision 1, dated June 26, 2008.

• Sicma Aero Seat Service Bulletin 94-25-013, Issue 4, dated February 12, 2008.

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

There are no products of this type currently registered in the United States. However, this rule is necessary to ensure that the described unsafe condition is addressed if any of these products are placed on the U.S. Register in the future.

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.

Since there are currently no domestic operators of this product, notice and opportunity for public comment before issuing this AD are unnecessary.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-1163; Directorate Identifier 2011-NM-022-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on January 25, 2011 (76 FR 4264). 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 comments received.

Comair, Inc. (Comair) requested that we revise paragraph (g) of the NPRM (76 FR 4264, January 25, 2011) to include MLG piston axles having P/Ns 49263-1 and 49263-3. Comair explained that it has been in contact with Goodrich regarding these part numbers. Comair expressed that Goodrich's response supports what Comair surmised from the Goodrich component maintenance manual (CMM) for P/N 49000, which was that P/Ns 49263-1 and 49263-3 are a next higher assembly (NHA) part number consisting of a piston axle with a metering pin assembly installed. Comair stated that the Goodrich CMM for P/N 49000 uses the following nomenclature, “Piston/Axle/Metering Pin Assy (Pre SB 32-45).”

Comair also explained that there have been several instances where Comair has sent Goodrich Landing Gear Services a piston/axle having P/N 49203-3 for repair. Comair stated that while the piston/axle was at Goodrich, a metering pin was installed.

Comair expressed that when the piston/axle was returned, the authorized release certificate (Form One) only contained P/N 49263-1, and that Form One does not list the part number for the piston/axle and metering pin, only the higher assembly part number. Comair further explained that when they received the piston/axle back into stock, the part number had changed from 49203-3 to 49263-1, during the receiving process. Comair stated that, consequently, when the piston/axle is installed on the airplane, it shows that P/N 49263-1 is installed; therefore, as the NPRM is written, Comair asserted that the NPRM would not apply by part number. Comair suggested that if P/Ns 49203-3 and 49203-5 exhibit an unsafe condition, then P/Ns 49263-1 and 49263-3 should be considered to have the same fretting concern and the same unsafe condition.

We agree, for clarification, to include MLG piston axles having P/Ns 49263-1 and 49263-3, in a note in the final rule. It has also come to our attention that several operators failed to do the inspection because the MLG rework paperwork (Form One) from Goodrich only annotated piston/axle/metering pin assembly NHA having P/N 49263-1 or 49263-3, while the NPRM only proposed to require inspection for MLG piston axles having P/N 49203-3 or 49203-5. While neither this AD nor Canadian AD CF-2010-15, dated May 13, 2010, require inspection for MLG piston axles having P/N 49263-1 or 49263-3, we want to avoid the possibility of an operator overlooking the intent of this final rule simply because the operator's overhaul paperwork is the only document that references the NHA part number. This change has been coordinated with Transport Canada Civil Aviation. We have revised this final rule to include new Note 2 to inform operators that MLG piston axles having P/N 49203-3 or 49203-5 that are installed on the airplane could be identified as having P/N 49263-1 or 49263-3. We have re-identified subsequent notes accordingly.

Mesa Airlines (Mesa) requested that we revise the NPRM (76 FR 4264, January 25, 2011) to extend the proposed compliance time of 12 months for the initial inspection specified in paragraph (h)(1) of the NPRM to 24 months. Mesa explained that its request is due to the number of applicable components, the size of its fleet, repair vendor capacity, and the turn time for the piston axle if needed.

We disagree to extend the compliance time specified in paragraph (h)(1) of the final rule. In developing an appropriate compliance time for this action, we considered the urgency associated with the subject unsafe condition, the availability of required parts, and the practical aspect of accomplishing the required inspection within a period of time that corresponds to the normal scheduled maintenance for most affected operators. According to the manufacturer, an ample number of required parts will be available to modify the airplanes identified in the Applicability section of this final rule within the compliance time. In consideration of these items, we have determined that a 12-month compliance time for the initial inspection in paragraph (h)(1) of this final rule is appropriate. However, under the provisions of paragraph (l) of the final rule, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety. We have not changed the final rule in this regard.

In its request to extend the proposed compliance time for the initial inspection, Mesa added the following statement, “6,000 hrs. to terminate.” Mesa did not provide any explanation for this request.

From this statement, we infer that Mesa requested that we include a compliance time of 6,000 flight hours after the initial inspection for the terminating action required by paragraph (j) of the final rule. We disagree with adding a compliance time to paragraph (j) of the final rule. Mesa has not provided any justification for this request. Further, including an additional compliance time would necessitate additional rulemaking, and we do not consider that delaying this action until that time is warranted, since the actions required by this AD are adequate to ensure continued safety of the affected fleet. We have not changed the final rule in this regard.

Mesa also requested that we revise the NPRM (76 FR 4264, January 25, 2011) to add a paragraph to paragraph (h) of the NPRM to allow for a provision for MLG piston axles which are scheduled for overhaul. Mesa suggested the following wording: “(4) For any piston axle that has been in service more than 48 months, of the effective date of this AD and is due to be overhauled within 36 months of the effective date of this AD, must be complied with at schedule overhaul.”

We disagree to include a provision for MLG axles which are scheduled for overhaul. Mesa has not provided any technical justification for this request. However, affected operators may request to allow for a provision for MLG piston axles which are scheduled for overhaul, under the provisions of paragraph (l) of this final rule by submitting data, substantiating that the change would provide an acceptable level of safety. We have not changed the final rule in this regard.

Mesa also requested that we clarify paragraph (i) of the NPRM (76 FR 4264, January 25, 2011). Mesa has not specified what aspect of the requirement it wants clarified, nor has it provided any reason for this request.

We agree to clarify paragraph (i) in this comment section of this final rule. Paragraph (i) of this final rule states the compliance time for doing the inspections specified in paragraph (h) of this AD for airplanes that have the mark “32-45” in the MOD STATUS field on the piston axle nameplate, or for airplanes that have done one of the repair engineering orders listed in the service information in paragraph (i) of this AD; within the compliance times required in paragraph (i) of this AD, these airplanes do the inspection and repeat the inspection as required by paragraph (h) of this AD. We have also added paragraphs (i)(1), (i)(2), and (i)(3) to the final rule to clarify the compliance times for paragraph (i).

We have revised paragraph (g) of this final rule to clarify that the compliance times for doing the inspection required by paragraph (g) of this final rule are the same as the applicable compliance times specified in paragraphs (h) and (i) of this final rule.

We have also added Note 3 to this final rule to clarify that the MCAI specifies to inspect only airplanes having certain serial numbers that are part of the MCAI applicability. Because the affected part could be rotated onto any of the airplanes listed in the applicability, this AD requires the inspection be done on all airplanes.

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the change described previously. We determined that this change 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 our FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 380 products of U.S. registry. We also estimate that it will take about 22 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $710,600, or $1,870 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (76 FR 4264, January 25, 2011), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

On November 16, 2009 (74 FR 58902), NMFS published a final rule to implement Amendment 15B to the FMP. That final rule contained collection-of-information requirements subject to the Paperwork Reduction Act (PRA) that were pending OMB approval at the time of publication. The rule delayed the effectiveness of those provisions of the rule with public reporting requirements until NMFS published OMB's approval of the collections. OMB approved these collection-of-information requirements on January 4, 2010 and January 27, 2010, under OMB control number 0648-0603 (South Atlantic snapper-grouper reporting requirements), and on April 12, 2011, under OMB control number 0648-0593 (South Atlantic snapper-grouper observer coverage requirements). Accordingly, this final rule makes effective the collection-of-information requirements at § 622.5(a)(1)(iv), (b)(1), and (b)(2); § 622.8(a)(6); and § 622.18(b)(1)(ii) on December 5, 2011. The collection-of-information requirement at § 622.5(g), which includes reporting requirements for the South Atlantic snapper-grouper recreational sector, will not be submitted for approval until further information on burden hour estimates can be obtained from the fishery.

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

This final rule contains collection-of-information requirements subject to the PRA which have been approved under OMB control numbers 0648-0603 and 0648-0593. The public reporting burdens for these collections of information are estimated to average: (1) 4 minutes for each notification of a vessel trip, (2) 20 minutes for each vessel and gear characterization form, (3) 31 minutes for each electronic logbook installation and data download, (4) 8 hours for each video monitor installation and data download, and (5) 20 minutes for each change of ownership. These estimates of the public reporting burdens include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information. Send comments regarding the burden estimates or any other aspect of the collection-of-information requirements, including suggestions for reducing the burden, to NMFS and to OMB (see ADDRESSES ).

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, 15 CFR part 902 is amended as follows:

The Department of State is amending § 123.22(c) to institute changes in the requirements for the return of licenses. With this change, applicants with DSP-5 licenses that have been issued electronically by the Directorate of Defense Trade Controls (DDTC) and decremented electronically by the U.S. Customs and Border Protection (CBP) through the Automated Export System (AES) are no longer required to return them to DDTC when they expire, to include when the total authorized value or quantity has been shipped. The return of these licenses is redundant and unnecessary as all of the export information has been captured and saved electronically. If a DSP-5 license issued electronically is decremented physically in one or more instance the license must be returned to the Department of State.

All other DSP-5 licenses that do not meet the criteria described above, and all DSP-61, DSP-73, and DSP-85 licenses, and DSP-94 authorizations, must be returned by the applicant, or the government agency with which the license or authorization was filed, to DDTC, as these licenses and authorizations are not decremented electronically, even if an Electronic Export Information is filed via AES.

New § 123.22(c)(3) addresses the return of the DSP-94 authorization.

New § 123.22(c)(4) provides that licenses issued but not used by the applicant do not need to be returned to DDTC.

New § 123.22(c)(5) provides that licenses which have been revoked by DDTC are considered expired.

Section 123.21(b) is amended to conform to the changes to § 123.22(c).

This rule was first presented as a proposed rule for public comment on July 14, 2011. That comment period ended August 29, 2011. Three comments were received. The Department's evaluation of the written comments and recommendations are as follows.

One commenting party recommended the Department revise the provision regarding the return of the DSP-85, as the issued license is not held by the applicant, but by an officer of the Defense Security Service. The Department accepted this recommendation, and has revised § 123.22(c)(2) to provide that “the government agency with which the license or authorization was filed” may also return an expired license or authorization to the Department.

One commenting party recommended revising the sentence in § 123.22(c)(1) addressing the maintenance of records. The commenting party correctly pointed out that, as drafted in the proposed rule, the requirement to maintain records of an electronically issued and decremented DSP-5 pertained only when the license was fully decremented or expired, when in fact the requirement, per ITAR § 122.5, is for record maintenance on an ongoing basis. Section (c)(1) is revised accordingly.

One commenting party recommended revising a section of the ITAR not the subject of this rule. The Department, though, takes this opportunity to address the recommendation. The commenting party recommended revising ITAR § 123.22(a)(1) to allow the exporter to present to CBP an electronically issued DSP-5 license at the time of permanent export, and not prior to filing the license in the Automated Export System. This procedure is a requirement set by CBP, for enforcement purposes, and not by the Department.

One commenting party recommended the elimination of the requirement to return any expired license to the Department, stating that it is inefficient, redundant of other recordkeeping requirements, and not in keeping with the Department's initiative to provide end-to-end electronic licensing. The Department observes that while it has instituted electronic processes for the majority of defense trade licensing transactions, it has not completed this initiative. Therefore, certain requirements cannot be completed electronically by the public. This includes providing the Department with a record of certain expired licenses. As an alternative, the commenting party suggested providing D-Trade, the Department's electronic licensing system, as a means of returning certain expired licenses, but D-Trade is currently not configured to support this function. The Department also observes that the recordkeeping requirement of ITAR § 122.5 pertains to registrants; for enforcement purposes, the Department also must have record of which exports were completed from approved authorizations. For the foregoing reasons, the Department did not accept this commenting party's recommendation.

Having thoroughly reviewed and evaluated the written comments and recommended changes, the Department has determined that it will accept, and hereby does adopt with the noted changes, the proposed rule as a final rule.

The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from § 553 (Rulemaking) and § 554 (Adjudications) of the Administrative Procedure Act. Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department published this rule with a 45-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function.

Since this amendment is not subject to the notice-and-comment procedures of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

This amendment does not involve a mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Department has determined that this rule 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 requirements of Executive Order 13175 do not apply to this rule.

This amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

This amendment will not have substantial direct effects 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. Therefore, in accordance with Executive Order 13132, it is determined that this amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this amendment.

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. The Department is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules governing the conduct of this function are exempt from the requirements of Executive Order 12866.

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.

The Department of State has reviewed the amendment in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. chapter 35.

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, part 123 is amended as follows:

On September 16, 2011, the United Nations Security Council adopted resolution 2009, which modifies the arms embargo against Libya put in place by the adoption in February and March of resolutions 1970 and 1973, respectively.

On February 26, 2011, the United Nations Security Council adopted Resolution 1970, paragraph 9 of which provides that UN member states shall immediately take the necessary measures to prevent the sale, supply, or transfer of arms and related materiel of all types to the Libyan Arab Jamahiriya, with certain exceptions. On March 17, 2011, the UN Security Council adopted Resolution 1973, paragraph 4 of which authorizes member states to take all necessary measures, notwithstanding the arms embargo established by paragraph 9 of Resolution 1970, to protect civilians and civilian populated areas under threat of attack in Libya. On May 24, 2011, the Department amended the ITAR to implement the Security Council's actions by adding Libya to § 126.1(c), which identifies countries subject to UN Security Council arms embargoes. See 76 FR 30001. The Department also revised the previous policy on Libya contained in § 126.1(k) to announce a policy of denial for all requests for licenses or other approvals to export or otherwise transfer defense articles and services to Libya, except where not prohibited under UNSC embargo and determined to be in the interests of the national security and foreign policy of the United States.

To the existing exceptions to the arms embargo, delineated in resolutions 1970 and 1973, resolution 2009 adds the supply, sale, or transfer to Libya of arms and related materiel, including technical assistance, intended solely for security or disarmament assistance to the Libyan authorities, and small arms, light weapons, and related materiel for the sole use of UN personnel, representatives of the media, and humanitarian and development workers and associated personnel. License applications submitted pursuant to these exceptions are notified in advance to the Committee of the Security Council concerning Libya, and are eligible for approval in the absence of a negative decision by the Committee within five working days of such a notification.

Accordingly, the ITAR is amended to reflect these exceptions.

The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from § 553 (Rulemaking) and § 554 (Adjudications) of the Administrative Procedure Act. Since this rule is exempt from 5 U.S.C. 553, it is the view of the Department of State that the provisions of § 553(d) do not apply to this rulemaking. Therefore, this rule is effective upon publication. The Department also finds that, given the national security issues surrounding U.S. policy towards Libya, that notice and public procedure on this rule would be impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 808(2).

Since this amendment is not subject to the notice-and-comment procedures of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

This amendment does not involve a mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Department has determined that this rule 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 requirements of Section 5 of Executive Order 13175 do not apply to this rule.

This amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

This amendment will not have substantial direct effects 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. Therefore, in accordance with Executive Order 13132, it is determined that this amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this amendment.

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. The Department is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules governing the conduct of this function are exempt from the requirements of Executive Order 12866.

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.

The Department of State has reviewed the amendment in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. chapter 35.

Accordingly, for the reasons set forth above, title 22, chapter I, subchapter M, part 126, is amended as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive necessary information about the event until October 4, 2011. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to the event. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the race participants, participant vessels, spectators, and the general public.

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

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The purpose of the rule is to protect race participants, participant vessels, spectators, and the general public from the hazards associated with high-speed boat races.

On November 9, 11, and 13, 2011, Super Boat International Productions, Inc. is hosting the Key West World Championship, a series of high-speed boat races. The event will be held on the waters of the Atlantic Ocean located southwest of Key West, Florida. Approximately 70 high-speed power boats will be participating in the races. It is anticipated that at least 100 spectator vessels will be present during the races. Although this event occurs annually, and special local regulations for this event are in the Code of Federal Regulations at 33 CFR 100.701, the Coast Guard has determined that additional safety measures are necessary in the special local regulations, including a buffer zone and two spectator areas. Therefore, the special local regulations set forth in 33 CFR 100.701 are inapplicable for this event.

The special local regulations encompass certain waters of the Atlantic Ocean located southwest of Key West, Florida. The special local regulations will be enforced daily from 9 a.m. until 5 p.m. on November 9, 2011; November 11, 2011; and November 13, 2011. The special local regulations consist of the following four areas: (1) A race area, where all persons and vessels, except those persons and vessels participating in the high-speed boat races, are prohibited from entering, transiting, anchoring, or remaining; (2) a buffer zone around the race area, where all persons and vessels, except those persons and vessels enforcing the buffer zone, are prohibited from entering, transiting, anchoring, or remaining; and (3) two spectator areas, where all vessels are prohibited from anchoring unless authorized by the Captain of the Port Key West or a designated representative. Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the race area, the buffer zone, or the spectator areas by contacting the Captain of the Port Key West by telephone at (305) 292-8727, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the race area, the buffer zone, or the spectator areas is granted by the Captain of the Port Key West or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Key West or a designated representative. The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

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

Executive Orders 13563, Regulatory Planning and Review, and 12866, Improving Regulation and Regulatory Review, direct agencies to assess the 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 not been designated a significant regulatory action section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The economic impact of this rule is not significant for the following reasons: (1) The special local regulations will only be in enforced for a total of 24 hours; (2) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the race area and buffer zone, or anchor in the spectator areas, without authorization from the Captain of the Port Key West or a designated representative, they may operate in the surrounding area during the enforcement periods; (3) persons and vessels may still enter, transit through, anchor in, or remain within the race area and buffer zone, or anchor in the spectator areas, during the enforcement periods if authorized by the Captain of the Port Key West or a designated representative; and (4) the Coast Guard will provide advance notification of the special local regulations to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owner or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Atlantic Ocean encompassed within the special local regulations from 9 a.m. until 5 p.m. on November 9, 2011 through November 13, 2011. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves special local regulations issued in conjunction with a marine event. Under figure 2-1, paragraph (34)(h), of the Instruction an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

For the purpose of this document, the following definitions apply:

(i) The words or initials Act or CAA mean or refer to the Federal Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The initials NAAQS mean or refer to the National Ambient Air Quality Standards.

(v) The words State or ND mean the State of North Dakota, unless the context indicates otherwise.

(vi) The initials NDDH mean or refer to the North Dakota Department of Health.

The Act requires States to follow certain procedures in developing implementation plans and plan revisions for submission to us. Sections 110(a)(2) and 110(l) of the Act provide that each implementation plan must be adopted after reasonable notice and public hearing.

To provide for public comment, the North Dakota Department of Health (NDDH), after providing notice, held a public hearing on October 7, 2008 to consider the revisions to the Air Pollution Control Rules. Following the public hearing, comment period, and legal review by the North Dakota Attorney General's Office, NDDH adopted the revisions. The revisions to the Air Pollution Control Rules became effective on April 1, 2009. The North Dakota Governor submitted the SIP revisions to us with a letter dated April 6, 2009. This submittal also included (1) SIP revisions to address Interstate Transport requirements related to the 1997 8-hour ozone and PM 2.5 NAAQS, which we acted on in 2010 (75 FR 31290, June 3, 2010, and 75 FR 71023, November 22, 2010), and (2) SIP revisions (commonly referred to as “infrastructure” requirements) to address implementation of current NAAQS for PM 10 , PM 2.5 , and ozone, which we will be acting on separately. In our June 3, 2010 and November 22, 2010 actions on North Dakota's Interstate Transport SIP revisions, we made errors in the identification of plan table located in 40 CFR 52.1820(e). We describe these errors in section III, below.

The SIP revisions in the April 6, 2009 submittal that we are acting on in this document involve the following chapters of the North Dakota Administrative Code (N.D.A.C.): 33-15-01, “General Provisions;” 33-15-02, “Ambient Air Quality Standards;” 33-15-05, “Emissions of Particulate Matter Restricted;” 33-15-14, “Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate;” and 33-15-23, “Fees.” The following is our description and analysis of the revisions.

The State revised sections 33-15-01-04, 33-15-01-05, and 33-15-01-13 and submitted the entire revised sections to us for approval. In section 33-15-01-04, the State made the following changes: (1) The State revised the definition of “air contaminant” to add the words, “emitted to the ambient air” to the end of the definition; (2) the State added definitions for “excess emissions” and “PM 2.5 ;” (3) the State re-numbered the definitions to account for the addition of new definitions; and (4) the State cross-referenced and incorporated by reference the version of 40 CFR 51.100(s) as it existed on March 1, 2008 for purposes of defining “volatile organic compounds” (the prior date used was January 1, 2006). These changes are minor and are consistent with relevant CAA and regulatory requirements.

In section 33-15-01-05, the State added abbreviations for PM and PM 2.5 . These revisions are minor and are consistent with the CAA.

The State made several revisions to 33-15-01-13, “Shutdown and Malfunction of an Installation—Requirement for notification.” In 33-15-01-13.1, “Maintenance shutdowns,” the State adopted new subdivision f, which reads, “Nothing in this subsection shall in any manner be construed as authorizing or legalizing the emission of air contaminants in excess of the rate allowed by this article or a permit issued pursuant to this article.” Previously, we had been concerned that the language of 33-15-01-13.1 could be construed as exempting from enforcement excess emissions during shutdown of air pollution control equipment for scheduled maintenance. EPA's interpretation is that the CAA requires that all periods of excess emissions, regardless of cause, be treated as violations and that automatic exemptions from emissions limits are not appropriate. 1 Subdivision f clarifies that excess emissions are not authorized during maintenance shutdowns. Subdivision f is consistent with CAA requirements.

In 33-15-01-13.2, “Malfunctions,” the State removed certain language and added other language. In 33-15-01-13.2.a, the State removed language indicating that the State could permit the continued operation of an installation during a malfunction resulting in a violation of an emissions limit. We were concerned that this language could be construed to exempt excess emissions caused by malfunctions when the State granted permission to continue operations. EPA's interpretation is that such an exemption would be inconsistent with the CAA. The removal of the language is consistent with CAA requirements.

The State added 33-15-01-13.2.c to 33-15-01-13.2. This new subdivision c identifies procedures sources and the State will follow with respect to unavoidable malfunctions. Where a source believes that excess emissions have resulted from an unavoidable malfunction, the source must submit a written report to the State that includes evidence relevant to six criteria specified in the rule. The report must be submitted within thirty days of the end of the calendar quarter in which the malfunction occurred or within thirty days of a written request by North Dakota, whichever is sooner. The rule provides that North Dakota will evaluate the information submitted by the source on a case-by-case basis to determine whether to pursue an enforcement action and that North Dakota may elect not to pursue an enforcement action after considering whether excess emissions resulted from an unavoidable equipment malfunction. The rule also provides that the burden of proof is on the source to provide sufficient information to demonstrate that an unavoidable equipment malfunction occurred.

Under EPA's interpretations of the CAA as set forth in the 1982, 1983, and 1999 Memoranda, if a state in its SIP chooses to address violations that occur as a result of claimed malfunctions, the state may take two approaches. The first, the “enforcement discretion” approach, allows a state director to refrain from taking an enforcement action for a violation if certain criteria are met. The second, the “affirmative defense” approach, allows a source to avoid penalties if it can prove that certain conditions are met. North Dakota's 33-15-01-13.2.c follows the enforcement discretion approach.

We have evaluated North Dakota's enforcement discretion provisions for excess emissions caused by unavoidable equipment malfunctions and find that they are consistent with EPA's interpretations of the CAA as described in the memoranda above. In particular, the criteria specified in 33-15-01-13.2.c that the State will consider in deciding whether to pursue an enforcement action generally parallel the criteria outlined in the 1982 and 1983 Memoranda.

As noted in footnote 1, above, the 1999 Memorandum also discusses a point not explicitly addressed in North Dakota's new rule— i.e., EPA will not approve SIP revisions that recognize or appear to recognize a state's decision not to pursue enforcement as barring enforcement action by EPA or citizens. Rule 33-15-01-13.2.c only addresses the State's exercise of its enforcement discretion and contains no language suggesting that a State decision not to pursue an enforcement action for a particular violation bars EPA or citizens from taking an enforcement action. Therefore, EPA interprets the rule, consistent with EPA's interpretations of the CAA, as not barring EPA and citizen enforcement of violations of applicable requirements when the State declines enforcement.

In 33-15-01-13.3, “Continuous emission monitoring system failures,” the State removed the phrase, “acceptable to the department,” from the text, “When a failure of a continuous emission monitoring system occurs, an alternative method, acceptable to the department, for measuring or estimating emissions must be undertaken as soon as possible.” Following this sentence, the State added a new sentence that reads as follows: “The owner or operator of a source that uses an alternative method shall have the burden of demonstrating that the method is accurate.” We had asked the State to remove the language “acceptable to the department” from the rule and find that the new language is consistent with CAA requirements.

In previous rulemakings, we referenced an April 11, 2003 submission of revisions to 33-15-01-13 and indicated that we would act on that submission at a later date. See 69 FR 61762, October 21, 2004; 70 FR 45539, October 8, 2005; and 71 FR 3764, January 24, 2006. However, in an August 17, 2009 letter, North Dakota advised EPA that the April 11, 2003 submission erroneously indicated there had been revisions to 33-15-01-13.1.d, and that in fact the cited revisions to 33-15-01-13.1.d had not been adopted and were not submitted to EPA with the Governor's April 11, 2003 letter. Therefore, there are no remaining revisions from the April 11, 2003 submittal awaiting EPA's action.

Table 1 was revised to amend the PM 10 and ozone standards and to add the 2006 PM  2.5 standard. These revisions were made to reflect the Federal standards and are consistent with CAA requirements.

The State removed section 33-15-05-03.2.2.d., which provided that the State could approve continued operation of a trash incinerator during a malfunction of combustion equipment, emission control equipment, monitoring equipment, or waste charging equipment. We were concerned that section 33-15-05-03.2.2.d could be construed to exempt excess emissions at trash incinerators caused by malfunctions when the State granted permission to the source to continue operations. EPA's interpretation is that such an exemption would be inconsistent with the CAA. We asked the State to address our concern. The removal of section 33-15-05-03.2.2.d addresses our concern and is consistent with CAA requirements. The SIP will no longer provide a potential exemption to trash incinerators operating during malfunctions based on State approval of continued operation during such periods. Instead, malfunctions at trash incinerators would be treated the same as malfunctions at other sources subject to SIP requirements— i.e., the source would need to follow the procedures contained in section 33-15-01-13.2.

In section 33-15-14-01, “Designated Air Contaminant Sources,” the State revised the list of sources “capable of causing or contributing to air pollution.” Specifically, the State added the word “major” to 33-15-14-01.14 so that it now reads as follows: “Any major source to which a national emission standard for hazardous air pollutants for source categories (40 CFR 63) would apply.” This change only affects the applicability of certain permitting requirements contained in Chapter 33-15-14. It does not affect emission limits in the SIP or other requirements that would affect ambient concentrations of criteria pollutants. It also does not affect the applicability of 40 CFR part 63 requirements. This change is consistent with CAA requirements.

The State revised section 33-15-23-03, “Minor source permit to operate fees.” The State simplified the definition of a “designated” source. (The rule establishes a fee for designated sources.) The State also expanded the exemption from fees for State government facilities to include local government facilities. This latter revision simply codified the State's standing practice of not collecting fees from local governments. In addition, the State made a minor change to the due date for sources to submit the annual permit fee; the fee is now due within 60 days following the date of the State's fee notice rather than within 60 days of receipt of the fee notice. These are minor clarifying changes that do not impact compliance with CAA requirements.

On June 3, 2010 and November 22, 2010 we published final rules approving portions of the revised North Dakota SIP for Interstate Transport of Pollution for the 1997 PM 2.5 and 8-Hour Ozone NAAQS. See 75 FR 31290 and 75 FR 71023. When we published those rules, we included regulatory text that was incorrect. Specifically, we made errors in the “Identification of plan” table contained in 40 CFR 52.1820(e), “EPA- approved nonregulatory provisions.” As published in our November 22, 2010 action (which augmented and revised the table contained in our June 3, 2010 action), the first portion of the explanation for item (1) In the table read as follows: “Excluding subsequent revisions, as follows: Chapters 1, 2, 6, 7, 9, 11, and 12; Sections 2.11, 3.7, 6.8, 6.10, 6.11, 6.13, 7.7, and 8.3; subsections 7.8.1.B., 7.8.1.D., and 8.3.1.”  2 It should have read, “Excluding subsequent revisions, as follows: Chapters 6, 11, and 12; Sections 2.11, 3.7, 6.10, 6.11, 6.13, and 8.3; and Subsections 3.2.1, 5.2.1, 7.8.1.A, 7.8.1.B, 7.8.1.C, and 8.3.1.” We also incorrectly listed the submittal date for items (21) and (22) in the table as 4/09/09 instead of 4/06/09. We are also revising part of the explanation for item (21) without changing its meaning. Therefore, we are correcting the identification of plan table in 40 CFR 52.1820(e) accordingly.

EPA did not receive any adverse comments on our May 5, 2011 proposal.

Under section 110(l) of the CAA, EPA cannot approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress toward attainment of the NAAQS or any other applicable requirement of the Act. As described in section II, above, most of the revisions we are approving conform the North Dakota SIP to relevant CAA requirements. In particular, the State revised shutdown and malfunction provisions to comport with CAA requirements. The other changes we are approving are minor and will not interfere with attainment or reasonable further progress toward attainment of the NAAQS  3 or any other CAA requirements.

EPA is approving revisions to the North Dakota SIP that the Governor of North Dakota submitted with a letter dated April 6, 2009 and that were State-effective April 1, 2009. Specifically, EPA is approving North Dakota's revisions to the following portions of the North Dakota Administrative Code: Chapter 33-15-01, “General Provisions,” sections 33-15-01-04, 33-15-01-05, and 33-15-01-13; Chapter 33-15-02, “Ambient Air Quality Standards,” section 33-15-02, Table 1; Chapter 33-15-05, “Emissions of Particulate Matter Restricted,” subsection 33-15-05-03.2.2; Chapter 33-15-14, “Designated Air Contaminant Sources, Permit to Construct, Minor Source Permit to Operate, Title V Permit to Operate,” subsection 33-15-14-01.14; and Chapter 33-15-23, “Fees,” section 33-15-23-03. See section II of this action, above, for a description of these revisions.

In addition, EPA is making administrative corrections to the regulatory text for North Dakota that will appear in the Code of Federal Regulations. Specifically, we are changing the identification of plan table that will appear at 40 CFR 52.1820(e) as follows:

a. We are changing the first portion of the explanation for item (1) in the table to read, “Excluding subsequent revisions, as follows: Chapters 6, 11, and 12; Sections 2.11, 3.7, 6.10, 6.11, 6.13, and 8.3; and Subsections 3.2.1, 5.2.1, 7.8.1.A, 7.8.1.B, 7.8.1.C, and 8.3.1.”

b. We are changing the submittal dates for items (21) and (22) in the table to read, “4/06/09,” and revising part of the explanation for item (21) without changing its meaning.

See section III of this action, above, for further information regarding these corrections.

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” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011);

• 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, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

40 CFR part 52 is amended to read as follows:

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The changes in BFEs are in accordance with 44 CFR 65.4.

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

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

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

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

Accordingly, 44 CFR part 65 is amended to read as follows:

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

The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.

The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq., and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.

These modified BFEs are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings. The changes in BFEs are in accordance with 44 CFR 65.4.

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

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

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

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

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

Accordingly, 44 CFR part 65 is amended to read as follows:

This document announces that, on October 20, 2011, OMB approved, for a period of three years, the information collection requirements contained 47 CFR 64.606(a)(2), (g), (h)(2) and (3). The Commission publishes this document to announce the effective date of these rule sections. See, In the Matter of Structure and Practices of the Video Relay Service Program, CG Docket No. 10-51; FCC 11-118, published at 76 FR 47469, August 5, 2011. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1150, in your correspondence. The Commission will also accept your comments via the Internet if you send them to PRA@fcc.gov.

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).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on October 20, 2011, for the information collection requirements contained in the Commission's rules at 47 CFR 64.606(a)(2), (g), (h)(2), and (3).

Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1150.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The electronic file of this document is available from the following: the Federal Register at http://www.gpoaccess.gov/fr/index.html ; the Federal eRulemaking Portal at http://www.regulations.gov and searching the Agency name and docket number (FMCSA-2011-0039).

The Commercial Motor Vehicle Safety Act of 1986 (CMVSA) (Pub. L. 99-570, title XII, 100 Stat. 3207-170, codified at 49 U.S.C. chapter 313) required the Secretary of Transportation, after consultation with the States, to prescribe regulations on minimum uniform standards for State issuance of CDLs. The Act also granted FMCSA authority to prescribe procedures and requirements the States must observe in issuing CDLs and CDL learner permits and specified information States must include on each CDL (49 U.S.C. 31308).

FMCSA is required by statute to maintain an information system that serves as the clearinghouse and depository of information about the licensing, identification and disqualification of operators of CMVs (49 U.S.C. 31309). CDLIS is the information system that serves that function. To avoid loss of Federal-aid highway funds, 49 U.S.C. 31314 requires each State to comply substantially with 49 U.S.C. 31311(a), which prescribes the requirements for State participation in the CDL program. To ensure that the States are able to exchange information about CDL holders efficiently and effectively through CDLIS, as required by 49 U.S.C. 31311(a)(5)-(9), (15), (18)-(19), and (21), this rule requires States issuing CDLs and CDL learner permits to follow all the procedures described in Version 5.2.0 of the CDLIS State Procedures Manual when posting, transmitting, and receiving all information on a CDL driver's CDLIS driver record.

In 1988, the Federal Highway Administration (FHWA) entered into a designation agreement with AAMVA's affiliate AAMVAnet, Inc. to create and operate CDLIS. Under that agreement, CDLIS had to contain all the information required in 49 U.S.C. 31309(b). The 1988 agreement stated that AAMVAnet will “cooperate fully with FHWA with respect to the operation of CDLIS including, but not limited to, information content and the development of standards relating to access to CDLIS by States and various employers and employees.” Pursuant to section 106(b) of the Motor Carrier Safety Improvement Act of 1999 (MCSIA) (Pub. L. 106-159, 113 Stat. 1748, 1757, 49 U.S.C. 113 note), the 1988 agreement automatically transferred to FMCSA upon the Agency's establishment and remained in effect until FMCSA and AAMVA, the party that inherited the responsibilities of its affiliate AAMVAnet, Inc., entered into a superseding agreement in 2008. Copies of the 1988 and 2008 agreements are in the public docket for this rulemaking.

In August 2005, section 4123 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) authorized FMCSA to establish a modernization plan for CDLIS (Pub. L. 109-59, 119 Stat. 1144, 1734, partly codified at 49 U.S.C. 31309(e) et seq. ). Section 4123 also authorized grants to States or organizations representing States for the modernization of CDLIS (49 U.S.C. 31309(f)).

On May 2, 2006, FMCSA published the CDLIS Modernization Plan in the Federal Register (71 FR 25885). The Plan detailed the statutory requirements for modernization, the phases of the modernization plan, and the availability of grant funding for AAMVA and the States to comply with CDLIS modernization requirements. Since May 2006, AAMVA has received grants from FMCSA to complete the tasks enumerated in the Modernization Plan.

On June 9, 2008, FMCSA and AAMVA entered into a new cooperative agreement regarding the operation, maintenance, and modernization of CDLIS. While FMCSA authorizes AAMVA to maintain and operate CDLIS, FMCSA does not own CDLIS and it is not a Federal system of records. FMCSA and AAMVA work closely together to monitor State compliance with the CDLIS specifications, as set forth in the May 2, 2006 Federal Register notice, and the States' annual grant agreements. FMCSA has awarded AAMVA Federal financial assistance grants to maintain an active Help Desk for State personnel, to conduct regularly occurring CDLIS training courses for State personnel, and to provide States with regular CDLIS transaction and error reports to improve their compliance efforts.

The goals of the 2008 agreement, to which any amendments must be made in writing and signed by all parties, are to provide a framework for the ongoing operation, maintenance, administration, enhancement, and modernization of CDLIS by AAMVA. The modernization will ensure compliance with applicable Federal information technology security standards; electronic exchange of all information including the posting of convictions; self-auditing features to ensure that data are being posted correctly and consistently by the States; and integration of an individual's CDL and the medical certificate as required in the final rule on “Medical Certification Requirements as Part of CDL” (73 FR 73096, December 1, 2008). Finally, the agreement provides a schedule for modernization of the system. The updated Release 5.2.0 of the Manual implements the CDLIS modernization effort.

The Manual (Release 5.2.0, February 2011) outlines the standard administrative practices required of the fifty States and the District of Columbia when participating in CDLIS. The 13 Canadian provinces and territories and the Mexican General Directorship of Federal Motor Carrier Transportation (DGAF) will also adopt the Release 5.2.0. This updated Release 5.2.0 supersedes the Manual (Release 4.1.0) of September 2007.

The primary audience for this Manual is State personnel involved in CDL programs, and their counterparts in Canada and Mexico, including administrative employees involved in driver licensing and computer-technology staff supporting the CDLIS transactions. The Manual (Release 5.2.0) contains background information about the laws mandating CDLIS and discusses types of CDLIS users. This Manual also includes descriptions, excerpted from the CDLIS System Specifications (Release 5.2.0), of the nation-wide computerized data-exchange transactions used to electronically record and report driver information. Further, the Manual (Release 5.2.0) provides guidance on administrative driver licensing procedures that involve CDLIS, including issuing, renewing, transferring, withdrawing, and reinstating a driver's license, and posting convictions. The Manual (Release 5.2.0) does not address CDL or CDL learner's permit program requirements outside the scope of CDLIS.

The Manual (Release 5.2.0) addresses changes that were made as part of the modernization effort to make CDLIS more efficient in handling the increasing number of driver records and data transactions. These changes include new rules for processing transactions, procedures for handling data transaction errors and clarifications of existing rules and procedures for processing data transactions. The following is a summary of the changes:

• The network was upgraded to comply with National Institute of Standards and Technology (NIST) and other Federal standards, including the encryption of messages (note: all States have completed this upgrade).

• FMCSA has encouraged States to follow the NIST standards in their internal systems that maintain driver history information used in messages sent via CDLIS.

• Because the CDLIS Central Site stores a significant accumulation of personally identifiable information (PII), FMCSA has overseen a Certification and Accreditation by independent auditors to ensure that it provides sufficient safeguards and mitigates the risk of that data being compromised or accessed by unauthorized personnel.

• Medical Certificate information, driver self-certification of operating status, medical certification status, information regarding variances and exemptions from medical requirements have all been added to the driver history record exchanged via CDLIS.

• A new nationwide driver license restriction code of `V' was created to be used on the license document and CDLIS messages to ensure law enforcement would ask the driver to provide variance information during a traffic stop.

• A new CDLIS message will allow FMCSA to quickly locate a driver's State and license number after a crash.

• Message edit-checks were added to ensure that data in driver history is being posted correctly and consistently by the States.

• Reports have been created to assist FMCSA in monitoring State compliance with Federal regulations related to timeliness, data quality, and various capabilities.

• States will be required to provide data from their licensing systems to verify that it matches the information on the Central Site; States will be provided error reports to take action to correct any data conflicts.

• Non-PII data will be used to create statistical reports related to the national CDL program.

The Manual also addresses the rules and procedures for recording and transmitting the new medical certification data that is being added to CDLIS driver records.

Section 552(a)(1) of Title 5, U.S.C., authorizes agencies, with the approval of the Director of the Federal Register, to incorporate by reference into regulations materials already published elsewhere. This reduces the volume of material published in the Federal Register and the Code of Federal Regulations. This final rule is part of the process of incorporating the Manual (Release 5.2.0) by reference. The legal effect of incorporation by reference is that the material is treated as if it were published in the Federal Register . This material, like any other properly issued rule, would then have the force and effect of law.

When the regulatory requirements for State participation in the CDL program were adopted as 49 CFR part 384 (59 FR 26029, May 18, 1994), they included the provision that the States must adhere to program requirements specified by the Agency and the designated operator of CDLIS. Section 384.231(d) states that each “State shall maintain such driver records and cause such driver identification data to be retained on the CDLIS as the operator of the CDLIS specifies are necessary to the implementation and enforcement of the disqualifications called for in §§ 384.215 through 384.219.” In fact, the information collection requirements built into CDLIS were specified broadly by FHWA in 1988 and more precisely by FMCSA in 2008. Those requirements have formed the basis for several editions of the Manual. In 2002, FMCSA, therefore, incorporated by reference into § 384.231(d) Version 2.0 of the Manual (67 FR 49742, July 31, 2002) and later updated the rule to incorporate the Manual (Version 4.1.0) (73 FR 73096, December 1, 2008).

FMCSA believes that uniform practices among the States can only be ensured by incorporating by reference the latest Manual (Release 5.2.0), published in February 2011. This most recent version of the Manual (Release 5.2.0) is available for inspection at the Department of Transportation Library and the National Archives and Records Administration. Copies of the Manual may also be obtained through AAMVA. Further details, contact addresses, and telephone numbers are provided in 49 CFR 384.107. While AAMVA plans to update this version of the Manual as needed to reflect changing legal requirements and best practices in the operation of CDLIS, incorporating the Manual (Release 5.2.0) by reference, however, ensures that each State complies with the specific version required by FMCSA.

FMCSA published a notice of proposed rulemaking (NPRM) on April 6, 2011, and provided for a 60-day public comment period (76 FR 19023). During the comment period, FMCSA received one comment from an anonymous source.

The commenter agreed overall with the proposed rule. However, there was concern that the NPRM did not explain with specificity the types of convictions, disqualifications and accidents that will be listed on a driver's CDLIS record. The commenter further stated that convictions, disqualifications, and accidents that occurred outside the scope of a driver's use of his or her CDL should not be posted on a driver's CDLIS record. The commenter stated that the following should not be included in a driver's CDLIS record: (1) Convictions outside the scope of the use of the CDL, for example, battery; and (2) information about accidents in vehicles that do not require the driver to hold a CDL.

The commenter also stated that certain information not related to a driver's use of a CDL should be included in his or her CDLIS record, such as all events resulting from chemical abuse and child molestation.

The commenter stated that implementing these changes would benefit FMCSA by reducing the risk of a challenge to the rule on privacy or equal protection grounds, would assist law enforcement in determining whether a CDL holder will be a safe driver and would act as a deterrent to CDL holders.

The purpose of this final rule is to incorporate by reference the Manual (Release 5.2.0), which will be more efficient in handling the increasing number of driver records and data transactions. The Manual (Release 5.2.0) includes new rules for processing transactions, procedures for handling data transaction errors and clarifications of existing rules and procedures for processing data transactions.

This final rule does not make any changes to the types of convictions, disqualifications, and accidents that are required to be reported to CDLIS. As a result, the comment on what types of convictions, disqualifications or accidents should or should not be included in CDLIS are outside the scope of this rulemaking.

This final rule amends the regulations at § 384.107 (b) to incorporate by reference the Manual (Release 5.2.0), and at § 384.301 to add paragraph (g) specifying that the State must comply with requirements of this rule by January 30, 2012. In the NPRM, FMCSA proposed adding the incorporation by reference to paragraph (e) of § 384.301; the Agency has now codified this provision in paragraph (g) as a result of other changes to the regulations that were codified after the NPRM was published.

This final rule requires States to comply with the Manual (Release 5.2.0) by January 30, 2012. The Agency believes the standard 3-year phase-in period is unnecessary because, under the modernization plan, the States are currently working to pass required implementing legislation, modify their information systems to comply with the new modernized CDLIS, begin recording the medical examiner's certificate information onto the CDLIS driver record, and make that information available from the CDLIS driver record beginning on January 30, 2012.

This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563 (76 FR 3821, Jan. 21, 2011), and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Agency does not believe implementing this rule will create new costs or cause an adverse economic impact on the industry or the public. Therefore, a full regulatory evaluation is unnecessary.

This final rule is directed to SDLAs. It will merely incorporate the CDLIS State Procedures Manual (Release 5.2.0). Separate regulations require States to comply with the substantive requirements of the Manual(Release 5.2.0), which merely sets processes and procedures to ensure that these other regulations are uniformly implemented. As a result, this rule will not impose significant costs on the States.

The only new statutory requirements that are addressed in the Manual are related to the merging of the medical examiner's certificate into the CDLIS driver record and those listed in the May 2, 2006 Federal Register notice detailing the plan to modernize CDLIS. The costs associated with the implementation of the new medical examiner's certificate requirements were addressed in the final rule on “Medical Certification Requirements as Part of the CDL,” published on December 1, 2008 (72 FR 73096). The costs associated with the modernization of CDLIS were addressed in the “CDLIS Modernization Plan,” published on May 2, 2006 (71 FR 25885).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires Federal agencies to determine whether rules could have a significant economic impact on a substantial number of small entities. This rule will primarily affect States and their processes and procedures for maintaining electronic driver history records. Consequently, I certify that this action will not have a significant economic impact on a substantial number of small entities.

This rulemaking does not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq. ), that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $141.3 million (which is the value of $100 million in 2010 after adjusting for inflation) or more in any 1 year.

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

FMCSA analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agency determined that this rule will not create an environmental risk to health or safety that may disproportionately affect children.

FMCSA reviewed this final rule in accordance with Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights, and has determined it will not affect a taking of private property or otherwise have taking implications.

FMCSA analyzed this final rule in accordance with the principles and criteria of Executive Order 13132, “Federalism,” and has determined that it does not have federalism implications.

The Federalism Executive Order applies to “policies that have federalism implications,” which is defined as regulations and other actions that have “substantial direct effects 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.” Sec. 1(a). Further, Section 3(b) of the Federalism Order provides that “[n]ational action limiting the policymaking discretion of the States shall be taken only where there is constitutional and statutory authority for the action and the national activity is appropriate in light of the presence of a problem of national significance.”

The final rule amends the CDL program authorized by CMVSA. States have been issuing CDLs in accordance with Federal standards for over two decades. The CDL program does not have preemptive effect because it is voluntary. States may withdraw at any time, although doing so would result in the loss of certain Federal-aid highway funds pursuant to 49 U.S.C. 31314. Because this rule makes only small, though numerous, incremental changes to the requirements already imposed on participating States, FMCSA has determined that it does not have substantial direct effects on the States, on the relationship between the Federal and State governments, or on the distribution of power and responsibilities among the various levels of government.

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note) requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule requires States to adopt uniform processes and procedures to maintain electronic driver history records in CDLIS, but does not require the collection of PII.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program. The CDLIS records, however, are not transferred from FMCSA to the States; they are created and maintained by the States. FMCSA has determined this rule will not result in a new or revised Privacy Act System of Records for FMCSA.

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq. ), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. FMCSA has determined that this final rule does not affect a currently-approved information collection covered by the OMB Control No. 2126-0011 titled, “Commercial Driver Licensing and Test Standards” or create the need for any new information collection.

FMCSA analyzed this rule in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ). The Agency has determined under its environmental procedures Order 5610.1, published March 1, 2004 in the Federal Register (69 FR 9680), that this action is categorically excluded (CE) from further environmental documentation under Appendix 2, Paragraph 6(s) and (t) of the Order (69 FR 9703). That CE relates to regulations regarding the CDL and related activities to assure CDL information is exchanged between States. In addition, the Agency believes this rule includes no extraordinary circumstances that will have any effect on the quality of the environment. Thus, the action does not require an environmental assessment or an environmental impact statement.

FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq. ), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.

FMCSA has analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use. The Agency has determined that it is not a “significant energy action” under that Executive Order because it is not economically significant and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

For the reasons set forth in the preamble, FMCSA amends part 384 of title 49, Code of Federal Regulations (49 CFR part 384) as follows:

On September 30, 2011, NMFS published a proposed rule in the Federal Register (76 FR 560790) to revise regulations at 50 CFR part 300, subpart C, in order to implement certain decisions of the IATTC. The proposed rule was open to public comment through October 17, 2011. NMFS also published an Advanced Notice of Proposed Rulemaking (ANPR) in the Federal Register (76 FR 39808, July 7, 2011) to request public comment on implementing two of the three IATTC measures being implemented with this final rule.

The IATTC was established under the 1949 Convention for the Establishment of an Inter-American Tropical Tuna. In 2003, the IATTC adopted a resolution that approved the Convention for Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention Between the United States of America and the Republic of Costa Rica (Antigua Convention), a major revision of the 1949 Convention. The Antigua Convention entered into force on August 27, 2010. The objective of the Antigua Convention is to ensure the long-term conservation and sustainable use of fish stocks covered by this Convention. The IATTC Convention Area (Convention Area) includes the waters bounded by the coast of the Americas, the 50°N. and 50°S. parallels, and the 150°W. meridian.

As a Contracting Party to the 1949 Convention and a member of the IATTC, the United States is legally bound to implement the decisions of the IATTC. The Act (16 U.S.C. 951-961) authorizes the Secretary of Commerce, after approval of IATTC recommendations by the Secretary of State, to promulgate such regulations as may be necessary to carry out the obligations of the United States. The authority to promulgate regulations has been delegated to NMFS.

The IATTC convened its 82nd Meeting in July 2011 and adopted by consensus twelve new resolutions. This final rule implements the following three resolutions adopted by the IATTC at the 82nd Meeting: the Resolution on a Multiannual Program for the Conservation of Tuna in the Eastern Pacific Ocean in 2011-2013 (C-11-01); the Resolution Prohibiting Fishing on Data Buoys (C-11-03); and the Resolution on the Conservation of Oceanic Whitetip Sharks Caught in Association with Fisheries in the Antigua Convention Area (C-11-10). All of the other resolutions that were adopted in 2011 either do not require further rulemaking or will be implemented in one or more separate subsequent rulemakings. All active resolutions and recommendations are available on the following IATTC Web site: http://www.iattc.org/ResolutionsActiveENG.htm.

Resolution C-11-01 is very similar to the tuna conservation measure adopted by the IATTC in 2009 (Resolution C-09-01). NMFS implemented Resolution C-09-01 at 50 CFR part 300, subpart C (74 FR 61046, November 23, 2009). Similar to Resolution C-09-01, the main objectives of Resolution C-11-01 are to not increase the fishing mortality of yellowfin tuna ( Thunnus albacares ) and to reduce the fishing mortality of bigeye tuna ( Thunnus obesus ) in the Convention Area over the period 2011-2013.

NMFS is reducing the duration of the closure period of the Convention Area for tuna purse seine vessels class sizes 4-6 (182 metric tons carrying capacity or greater) in 2011 from 73 days, which was established under Resolution C-09-01, to 62 days, which was established under Resolution C-11-01, and continuing the closure period of 62 days in the years 2012 and 2013. The shorter closure period was agreed to by the members of the IATTC based on the 2011 bigeye and yellowfin tuna stock assessments. NMFS is also giving applicable purse seine vessel owners the ability to choose between the two possible closure periods established by the IATTC for 2012 and 2013. In 2009, 2010, and 2011, NMFS chose the later closure period for the entire U.S. purse seine fleet based on historical fishing operations; however, other members of the IATTC are allowing vessel owners to choose between the two closure periods to give fleets greater flexibility. In order to give comparable flexibility to the U.S. fleet, NMFS is providing this choice to the U.S. fleet as well in 2012 and 2013. Therefore, vessel owners of purse seine vessels that are subject to these requirements will be required by July 1, 2012, and July 1, 2013, to notify the NMFS Southwest Regional Administrator of his or her choice of closure period for the year. The two options are July 29 to September 28, or November 18 to January 18 of the following year for 2012 and 2013. This option is not available for 2011 since the earlier closure period has already passed. If a vessel owner fails to notify the Regional Administrator of his or her choice by the July 1 deadline for each year, the vessel will be subject to the later closure period (November 18 to January 18 of the following year) by default.

The high seas time/area closure for tuna purse seine vessels class sizes 4-6 will also continue to be in effect in 2012 and 2013. The area consists of the area bounded at the east and west by 96° and 110° W. longitude and bounded at the north and south by 4° N. and 3° S. latitude. The high seas time/area closure was originally established under Resolution C-09-01 and has been in place since 2009.

In addition, NMFS is extending in 2012 and 2013 the annual bigeye tuna quota of 500 metric tons applicable to the bigeye catch in the Convention Area by U.S. longline vessels over 24 meters in overall length in accordance with the requirements in Resolution C-11-01. This quota has been in place since 2009 and has never been reached or exceeded. The members of the IATTC agreed to continue the bigeye tuna quotas in the Convention Area after review and analysis of the 2011 bigeye and yellowfin tuna stock assessments.

NMFS is also renewing the tuna retention program that requires all bigeye, skipjack, and yellowfin tuna caught by a U.S. purse seine vessel of class sizes 4-6 be retained on board and landed, except fish deemed unfit for human consumption for reasons other than size. The single exemption to this provision is the final set of a trip, when there may be insufficient well space remaining to accommodate all the tuna caught in that set. This measure is meant to reduce discards of juvenile (undersized) bigeye, yellowfin, and skipjack tunas that are often caught by purse seine vessels that fish on fish aggregating devices (FADs), reduce overall catches of bigeye tuna, and provide an incentive to fishermen to avoid large catches of juvenile bigeye tuna. The catch retention requirement will go into effect on January 1, 2012, and remain in effect unless the members of the IATTC agree to remove the measure in 2013 or beyond. NMFS is proposing to not include an expiration date for this requirement because NMFS expects it to be included by the IATTC in future tuna conservation and management resolutions. If a decision is made to remove the measure, NMFS will take appropriate action to remove the regulation.

The Resolution Prohibiting Fishing on Data Buoys (Resolution C-11-03) was adopted to reduce vandalism and damage to data buoys caused by fishing vessels that often leads to loss of data critical to weather forecasting, tsunami warnings, search and rescue efforts, and research of the marine environment. Resolution C-11-03 defines data buoys as floating devices, either drifting or anchored, that are deployed by governmental or recognized scientific organizations or entities for the purpose of electronically collecting environmental data, and not in support of fishing activities.

This rule prohibits all U.S. fishing vessels that are used to target HMS in the Convention Area from interacting with data buoys. According to Resolution C-11-10, interactions include, but are not limited to, encircling the buoy with fishing gear, tying up to or attaching the vessel, fishing gear, or any part or portion of the vessel to a data buoy, or cutting its anchor line. In addition, this rule prohibits all U.S. longline and purse seine vessels that are used to fish for HMS in the Convention Area from using fishing gear within one nautical mile of an anchored data buoy. The one-nautical-mile distance will be measured from the data buoy to the nearest portion of the vessel or items associated with the vessel, such as gear or watercraft deployed by the fishing vessel, to the data buoy. These measures only apply to data buoys that have been identified to the IATTC. In addition, the Web site of NOAA's National Data Buoy Center (NDBC) at http://www.ndbc.noaa.gov/ contains detailed information regarding data buoys maintained by NDBC and its partner organizations, including location and owner information. The Web site of the Observing System Monitoring Center, maintained by NOAA's Office of Climate Observations at http://osmc.noaa.gov/Monitor/OSMC/OSMC.html, also provides information regarding the location of data buoys. The Western and Central Pacific Fisheries Commission (WCPFC) also adopted a similar measure in December 2009 (CMM 2009-05) and issued an information package on May 18, 2010, that provides sample information on the type of data buoys that may be encountered by fishermen. The information package is available on the WCPFC's Web site at http://www.wcpfc.int/conservation-and-management-measures. The prohibition does not apply if the fishing vessel is operating as part of a scientific research program that notified the IATTC of its intent, or is conducting work on behalf of the IATTC.

Other requirements include prohibiting U.S. fishing vessels used to target HMS in the Convention Area from taking onboard a data buoy unless specifically authorized or requested to do so by the entity responsible for the data buoy, requiring U.S. fishing vessels used for fishing for HMS in the Convention Area that become entangled with data buoys to remove the entangled fishing gear with as little damage to the data buoy as possible, and requiring vessels to take all reasonable measures to avoid fishing gear entanglement or directly interacting in any way with drifting data buoys. NOAA has also previously issued news releases asking the fishing, shipping, and boating communities to protect data buoys voluntarily by taking specific steps, such as: never boarding or tying up to a buoy; never fishing around or under a buoy; and giving the buoy a wide berth to avoid entangling the mooring or other equipment suspended from the buoy—500 yards for vessels which are trailing gear and at least 20 yards for all others.

The Resolution on the Conservation of Oceanic Whitetip Sharks Caught in Association with Fisheries in the Antigua Convention Area (Resolution C-11-10) was adopted to reduce the fishing pressure on oceanic whitetip sharks ( Carcharhinus longimanus ), which are caught incidentally and targeted in some oceanic and coastal fisheries. During the IATTC's 82nd Meeting, IATTC scientific staff showed estimates illustrating a dramatic decline in the catch per unit of effort of this species, which may be indicative of a decline in the population of this species in the EPO.

This rule prohibits all U.S. vessels targeting HMS in the Convention Area from retaining onboard, transshipping, landing, storing, selling, or offering for sale any part or whole carcass of oceanic whitetip sharks. All applicable U.S. vessels are required to release unharmed, to the extent practicable, oceanic whitetip sharks when brought alongside the vessel. Members and cooperating non-members of the IATTC are required to implement Resolution C-11-10 by January 1, 2012.

This rule also makes a technical change to § 300.22(b)(7)(ii) to reflect changes made in a previous rulemaking on vessel capacity. The total capacity limitation for the U.S. purse seine fishery in the Convention Area is 31,775 cubic meters, but NMFS inadvertently failed to state that number into this paragraph when the change was made in § 300.22(b)(4)(i)(A). NMFS is correcting this oversight in this rulemaking.

NMFS received two public comments during the ANPR public comment period. One comment expressed general opposition to the action because it did not go far enough in terms of conservation and advocated banning all longline fishing and further restricting tuna fisheries beyond the scope of this action. In addition, the National Park Service, Pacific West Region, noted that they did not have comments on the subject action. NMFS also received one public comment during the proposed rule public comment period from NOAA Pacific Marine Environmental Laboratory (PMEL). Only one individual participated in the public hearing via teleconference and did not provide substantive comments.

Comment 1: The NOAA PMEL Tropical Atmosphere Ocean (TAO) project fully supports NOAA's planned implementation of the Resolution Fishing on Data Buoys (C-11-03) in the IATTC Convention Area. The eastern tropical Pacific Ocean TAO data buoys experience the highest amount of damage due to fishing activity when compared to all other sites in the array. Loss of critical TAO data results in decreased ability to detect and forecast El Niño and La Niña, which degrades the accuracy of advisories issued for the protection of life and property. In addition, millions of taxpayer dollars are wasted on repairs or replacements to moorings damaged or lost by fishing activity. The benefits of this resolution to the nation in terms of public health and safety far outweigh any inconvenience resulting from the restriction of fishing activity around these crucial environmental measurement platforms.

Response: NMFS acknowledges this comment in support of the action.

There were a few minor changes to the proposed regulatory text. The subject of the sentence at § 300.25(e)(4) regarding the oceanic whitetip shark provision, was changed from the vessel itself to the vessel crew, operator, or owner of the vessel given the nature of the provision. In addition, vessel length was clarified throughout the regulations to be “overall length,” which is defined by the U.S. Coast Guard at 46 CFR 69.203 as the horizontal distance between the outboard side of the foremost part of the stern and the outboard side of the aftermost part of the stern, excluding rudders, outboard motor brackets, and other similar fittings and attachments. Finally, the option to mail in notification to the Regional Administrator of a chosen purse seine closure period was added to § 300.25(f)(ii)(3).

The NMFS Assistant Administrator has determined that this final rule is consistent with the Tuna Conventions Act and other applicable law.

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

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date for the portion of the rule that is shortening the purse seine closure period in the Convention Area by 11 days. One purpose of this rule is to allow U.S. fishing vessel owners to maximize their fishing opportunities while still conserving and sustainably managing the bigeye tuna and yellowfin tuna fish stocks in the Convention Area consistent with U.S. obligations as a member of the IATTC. Currently, regulations prohibit purse seine vessels of class size 4-6 (more than 182 metric tons carrying capacity) from fishing in the Convention Area from November 7, 2011, to January 18, 2012. However, these regulations amend current regulations to delay the start date of the purse seine closure period to November 18, 2011, consistent with Resolution C-11-01. If this rule is not effective for 30 days, then U.S. fishing vessels will lose the additional fishing opportunities afforded them through the agreement made at the 82nd IATTC Meeting. Because the delay would undermine the purpose of this rule, and would prevent U.S. fishermen from using the additional fishing days to maximize their fishing opportunities, the delay in effectiveness is contrary to the public interest. Accordingly, there is good cause to waive the 30-day delay in effectiveness for the regulations at § 300.24(m) and (n) and § 300.25(f), which will become effective immediately, while all other regulations being issued will become effective 30 days after publication of this final rule.

A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the IRFA and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES ).

The data buoy and oceanic whitetip shark provisions in the rule apply to owners and operators of U.S. vessels targeting HMS in the Convention Area, including, longline, purse seine, troll and baitboat, drift gillnet, harpoon, and commercial passenger fishing vessels. All of these vessels are considered small business entities under the Regulatory Flexibility Act (RFA) ( i.e., they have annual gross revenues of less than $4 million) except for the large purse seiners. Some of the data buoy provisions also specifically apply to longline and purse seine vessels. However, in the case of the data buoy provisions, it is unlikely that this rulemaking will result in a significant change in fishing operations, as NMFS is unaware of U.S. fishing vessels interacting with data buoys in the Convention Area in the past, or U.S. longline or purse seine vessels deploying gear within one nautical mile of anchored data buoys in the Convention Area. If, in the past, there have been vessels fishing within one nautical mile of anchored data buoys, the longline and purse seine measures could result in some negligible affects to the operating costs of vessels in terms of a potential increase in search time if there is less fishing success when not fishing around anchored buoys. Also, such vessels are required to avoid fishing in areas where anchored data buoys are located, which could slightly reduce the available fishing grounds and could cause some shift in the spatial distribution of fishing effort. Operators and crew are also required to take additional precautions when encountering data buoys anywhere in the Convention Area, which could create new burdens that could increase operating costs by increasing the time spent at sea. For example, the operator and crew of any vessel that has gear that becomes entangled with a data buoy will need to make sure to disentangle the gear carefully, in order to cause as little damage to the data buoys as possible. However, since the measures are limited to fishing around anchored data buoys and longline and purse seine vessels can still fish in essentially the same fishing grounds as long as they avoid the circular 3.14 nm 2 prohibited fishing zone around each anchored data buoy, it is likely that there will be no real changes in fishing operations or associated revenues.

The longline and purse seine fleets that currently fish around anchored data buoys could also see some change in the composition of their catch due to no longer being allowed to fish around anchored data buoys that can act as fish aggregating devices; however, this is rather unlikely. This provision could lead to an increase in the proportion of yellowfin tuna and a decrease in the proportion of bigeye tuna, skipjack tuna, and other species that tend to be caught around floating objects. Some studies suggest that seabirds, sea turtles, and marine mammals aggregate in association with floating objects, so there could be some minor beneficial effects on protected resources from implementation of the rule. However, this impact is difficult, if not impossible, to estimate and in all likelihood there will not be changes in fishing operations and catch compositions resulting from the rule. In addition, purse seine vessels still can fish using FADs that they deploy and it is presumed that longline vessels tend to avoid fishing in close proximity to anchored buoys to prevent damage and entanglement of gear.

NMFS compared the effects of the data buoy provisions in this rule to one alternative, which is a no action alternative. Under this alternative, there would be no changes to current regulations that do not prohibit U.S. vessels targeting HMS in the Convention Area from interacting with data buoys as stipulated in Resolution C-11-03. Under this alternative, there would be no effects to vessel owners compared to the status quo. Vessel owners would potentially benefit from not implementing the data buoy provisions; however, the United States would not be implementing Resolution C-11-03 and would therefore not be satisfying its international obligations as a member of the IATTC.

The oceanic whitetip shark conservation measures are also unlikely to result in changes to fishing operations or significant economic impacts to small entities as U.S. fisheries that target HMS rarely retain, transship, land, or sell this species in the Convention Area. The Hawaii longline fishery (both deep-set and shallow-set sectors) catches the majority, if not all, of the oceanic whitetip sharks caught by U.S. fisheries that target HMS in the Convention Area. According to observer data from 1995-2010 for the U.S. longline fleet based out of Hawaii, the majority (90.1 percent) of observed sets caught zero oceanic whitetip sharks. On average, 0.141 oceanic whitetip sharks were caught per set during the same time period. Since 2000, there has been a national ban on shark finning, which has greatly increased the number of sharks, including oceanic whitetip sharks, that are released after being caught. From 2004-2006, only 4.9 percent and 1.7 percent of the oceanic whitetip sharks that were caught were retained in the deep-set and shallow-set longline fisheries, respectively. The overwhelming majority of the oceanic whitetip sharks (99.3 percent) caught on observed fishing trips in this fishery are caught outside of the Convention Area, west of 150°W. longitude. Thus, the prohibition is expected to result in no change in fishing operations and only a de minimis reduction in associated revenues.

NMFS compared the effects of the oceanic whitetip provisions to one alternative, which is a no action alternative. Under this alternative, there would be no changes to current regulations in order to prohibit U.S. vessels targeting HMS in the Convention Area from retaining onboard, transshipping, landing, storing, selling, or offering for sale any part or whole carcass of oceanic whitetip shark, as stipulated in Resolution C-11-10. Under this alternative, there would be no effects to vessel owners compared to the status quo. Vessel owners would potentially benefit from not implementing the oceanic whitetip provisions; however, the United States would not be implementing Resolution C-11-10 and would therefore not be satisfying its international obligations as a member of the IATTC.

In summary, all entities that have the potential to be affected by the data buoy and oceanic whitetip shark measures are believed to be small entities except the large purse seine vessels; however, it is likely that none of these entities will be significantly impacted by the rule as fishing operations and revenues will most likely remain the same.

The tuna conservation measures affect longline vessels over 24 meters overall length and U.S. purse seine vessels class sizes 4-6 fishing for yellowfin, bigeye, and skipjack tunas in the Convention Area. This rule makes only slight adjustments to the existing tuna conservation measures, and extends the effective period for two additional fishing years; thus impacts to vessel owners are expected to be minimal. The bigeye tuna quota in the longline fishery will remain at 500 mt and remain in force for 2012 and 2013. This quota has not been reached in 2009 or 2010 and it is not expected to be reached in 2011. In addition, the purse seine closure in the Convention Area will be shortened by 11 days in 2011 and will remain in force for 2012 and 2013. Additionally, the purse seine vessel owners will be given a choice as to when to implement the closure giving them greater flexibility while maintaining the same level of conservation, the high seas purse seine time/area closure will remain in force for 2012 and 2013, and the tuna catch retention measures will be extended to 2012 and beyond.

NMFS compared the effects of the tuna conservation measures in this rule to one alternative, which is a no action alternative. Under this alternative, there would be no changes to current regulations to continue the bigeye tuna quota in 2012 and 2013 in the longline fishery, no changes to the purse seine closure periods, no option to select a preferred closure period, and no extension of the tuna retention measures as stipulated in Resolution C-11-01. Under this alternative, the longline and purse seine fisheries operating in the Convention Area would maintain the status quo. The longline vessel owners would benefit from not continuing the bigeye tuna quota; however, since this quota has not been reached in the past, the effects would likely be similar to the measures being implemented. The purse seine vessel owners would be disadvantaged by not shortening the purse seine closure period in the Convention Area by 11 days in 2011 and not giving them the option to choose a preferred closure period; however, they would benefit if the closure period in the Convention Area and the high seas time/area closure were not continued in 2012 and 2013 and the tuna retention measures were not continued in 2012 and beyond. Under this alternative, the United States would not be fully implementing Resolution C-11-01 and would therefore not be satisfying its international obligations as a member of the IATTC.

The total number of affected longline vessels is approximated by the average number of U.S. longline vessels greater than 24 meters in overall length (large-scale longline vessels) that have caught bigeye tuna in the Convention Area in 2005-2010. In each of the years 2005 through 2008, the number of large-scale longline vessels that caught bigeye in the Convention Area was 18, 8, 18, and 30, respectively. Thus, approximately 19 longline vessels on average have the potential to be affected by this rule. The majority of the longline vessels that may be affected by this rule are based out of Hawaii and American Samoa. There is also one longline vessel based out of California that is affected by the rule. These longline vessels target bigeye tuna using deep sets, and during certain parts of the year, portions of the Hawaii and American Samoa fleet target swordfish using shallow sets.

Most of the Hawaii and American Samoa fleets' fishing effort has traditionally been outside of the Convention Area in the western and central Pacific Ocean (WCPO), but fishing has also taken place in the EPO. The proportion of the large-scale longline vessels annual bigeye tuna catches that were captured in the EPO from 2005 through 2009 ranged from about 5 percent to 26 percent, and averaged 19 percent. As an indication of the size of businesses in the fishery, average annual fleet-wide ex-vessel revenues during 2005-2009 were about $63 million. Given the number of vessels active during that period (128, on average), this indicates an average of about $490,000 in annual revenue per vessel. All of the businesses affected by the longline measures are considered small business entities.

For the purpose of projecting baseline conditions for the longline fishery under no action, this analysis relies on fishery performance from 2005 through 2010, since prior to 2005 the longline fishery regulations underwent major changes (the swordfish-directed shallow-set longline fishery was closed in 2001 and reopened in 2004 with limits on fishing effort and turtle interactions). Large-scale longline vessels fishing in the Convention Area caught about 166, 51, 118, 325, 204, and 408 mt of bigeye tuna in 2005-2010, respectively. Thus, it is unlikely that the limit will be reached in 2011-2013.

In summary, all entities affected by the bigeye quota in longline fisheries are believed to be small entities, so small entities will not be disproportionately affected relative to large entities. In addition, this part of the rule is not likely to have a significant impact on a substantial number of small entities because it is unlikely that the bigeye landings limit for large-scale longline vessels will be reached in any given year.

The total number of affected purse seine vessels is approximated by the current number of U.S. purse seine vessels class size 4-6 authorized to fish in the Convention Area. As of October 18, 2011, there were eleven U.S. purse seine vessels listed on the IATTC Vessel Register; five are class size 6 (greater than 363 mt carrying capacity), one is class size 5 (273—363 mt carrying capacity), and five are class sizes 1-3 (less than 182 mt carrying capacity). Thus six purse seine vessels may be affected by the rule in the near future since these regulations only apply to purse seine vessels class size 4-6. There is also the potential for other U.S. purse seine vessels based out of the WCPO to become authorized to fish in the EPO; however, there are capacity limits on purse seine vessels fishing in the EPO and it is estimated that at a maximum 15 additional vessels could be added to the current authorized list of active purse seine vessels. Purse seine vessels class sizes 5 and 6 usually fish outside U.S. waters and deliver their catch to U.S. ( e.g., American Samoa) or foreign ( e.g., Ecuador, Mexico, Colombia, Costa Rica) ports. Skipjack and yellowfin tuna are the primary target species in the purse seine fishery, and bigeye tuna is incidentally targeted. Class size 6 vessels are required to have 100 percent observer coverage, while class size 5 vessels are not required to carry an observer. Purse seine vessels class size 5 or smaller are considered small business entities. It is estimated that from 2004-2010, the majority, if not all, class size 5 U.S. purse seine vessels have had revenues of less than $0.5 million per year. Class size 6 vessels are categorized as large business entities (revenues in excess of $4 million per year). A large purse seine vessel typically generates about 4,000 to 5,000 mt of tuna valued at about $4 to $5 million per year.

It is estimated that purse seine sets will be prohibited for 17 percent of the year in 2011-2013 (62 day closure/365 days), thus catches could be negatively affected unless effort is shifted to areas outside of the Convention Area during the closure period, or to different times of the year when there is no closure. The affected vessels are capable of fishing outside of the closure area ( i.e., in the WCPO) during the closure period and/or for the remainder of the year, since the fishery continues year round in the EPO, and vessels tend to use relatively short closures (such as these) for regular vessel maintenance. Fishing in the WCPO may produce additional costs to some of the affected vessels that are based out of the U.S. West Coast and primarily fish in the EPO due to the increase in costs associated with fishing further away from port. In addition, there is a FAD purse seine closure period in the WCPO from July 1 to September 30 in 2011 that further constrains purse seine fishing effort in the WCPO. The closure may be extended into 2012 and beyond, depending on the tuna conservation and management measures that are adopted by the WCPFC at their annual meeting in December 2011.

Other factors that have the potential to inhibit these vessels from fishing outside of the Convention Area include licensing availability and costs, and effort limits for purse seine vessels fishing in the WCPO. It is assumed that fishing in the WCPO is the only practical geographic alternative for these vessels. Purse seine vessels fishing in the WCPO under the South Pacific Tuna Treaty (SPTT) are required to license their vessels; the maximum number of licensed vessels allowed in the U.S. purse seine fishery in the WCPO is 40 and currently there are 37 licensed vessels as of September 2011. The vessel registration fee is about $3,250 per vessel. The five class size 6 purse seine vessels that are authorized to fish in the Convention Area are already registered under the SPTT. It may not be economically viable for the class size 5 purse seine vessels to register under the SPTT and fish in the WCPO because of the smaller carrying capacity and the increased costs associated with fishing far from port.

In summary, one small business entity and five large business entities may be affected by the purse seine measures, thus small entities will not be disproportionately affected relative to large entities. In addition, the purse seine closure periods are not likely to have a significant impact on a substantial number of small entities because only one small business entity may be affected and it is estimated that its fishing effort will not change significantly from the status quo.

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by the Office of Management and Budget (OMB) under control number 0648-0387. Reporting burden for purse seine vessel owners or managers when providing written notification (via fax) to NMFS declaring which purse seine closure period he or she will be adhering to in 2012 and 2013, is estimated to be 10 minutes per response, which includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:

The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.

On November 22, 2006, NMFS published a final rule (71 FR 67447) to implement Amendment 26 to the Reef Fish FMP (Amendment 26), which established the Gulf of Mexico Red Snapper IFQ program. The program became effective on January 1, 2007. In addition to the initial implementation of the Gulf red snapper IFQ program, Amendment 26 implemented a provision to allow general public participation within the red snapper IFQ program 5 years after program implementation. The general public participation provision becomes effective on January 1, 2012.

In 2009, NMFS published a final rule implementing Amendment 29 to the Reef Fish FMP (74 FR 44732, August 31, 2009), which established the Gulf of Mexico IFQ program for groupers and tilefishes. The reauthorized Magnuson-Stevens Act of 2006, requires any participant in an IFQ program to be a U.S. citizen or permanent resident alien. Currently, information regarding an IFQ participant's status as a U.S. citizen or permanent resident alien is not collected on Federal Gulf reef fish permit applications or through the Gulf IFQ system. This rule requires that all Gulf IFQ program participants certify their citizenship status to participate in a Gulf IFQ program.

On August 17, 2011, NMFS published a proposed rule to supplement the regulations implementing Amendments 26 and 29 (76 FR 50979). This rule establishes an information collection to meet the January 1, 2012 requirements of the Gulf red snapper IFQ program outlined in Amendment 26, and to meet the requirements of the reauthorized Magnuson-Stevens Act for the grouper-tilefish IFQ program implemented through Amendment 29. This rule also describes the procedures that are necessary for all qualified entities to apply for and maintain an IFQ online account. Additionally, this rule revises the codified text to remove outdated language for the red snapper and grouper-tilefish IFQ programs. Specifically, this rule removes regulatory language that was applicable to the initial implementation of the red snapper and grouper-tilefish IFQ programs but that is no longer needed.

NMFS received public comments from seven individuals or groups on the proposed rule. One commenter did not directly comment on the rulemaking, but requested information regarding the Red Snapper IFQ program. One comment from a Federal Agency indicated they had no comments to the proposed rule. The remaining comments expresses general opposition to allowing public participation in the Red Snapper IFQ program outside of reef fish permit holders. All comments received were either outside the scope of the rule or non-substantive in nature. Therefore, no changes were made to this final rule as a result of public comment.

The Regional Administrator, Southeast Region, NMFS, has determined that this final rule is necessary for the effective management of the IFQ programs in the Gulf of Mexico and is consistent with the Magnuson-Stevens Act, and other applicable laws.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) applicable to participants in Gulf IFQ programs; namely, a requirement to complete and submit an application for an IFQ Online Account to certify a participant's U.S. citizenship status and to update and confirm their application every 2 years.

This requirement has been approved by the OMB under control numbers 0648-0551 and 0648-0587. The public reporting burden for this collection-of-information is estimated to average 10 minutes per applicant/participant every 2 years. This estimate of the public reporting burden includes the time for reviewing instructions, gathering and maintaining the data needed, and completing and reviewing the collection-of-information. Send comments regarding the burden estimate or any other aspect of the collection-of-information requirement, including suggestions for reducing the burden, to NMFS and to OMB (see ADDRESSES ).

Notwithstanding any other provision of law, no person is required to respond to, nor shall be subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:

In the 2011 annual management measures for ocean salmon fisheries (76 FR 25246, May 4, 2011), NMFS announced the commercial and recreational fisheries in the area from the U.S./Canada Border to the U.S./Mexico Border, beginning May 1, 2011, and 2012 salmon seasons opening earlier than May 1, 2012.

NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Prior to taking inseason action, the Regional Administrator (RA) consults with the Chairman of the Pacific Fishery Management Council (Council) and the appropriate State Directors (50 CFR 660.409(b)(1)).

Management of the salmon fisheries is generally divided into two geographic areas: north of Cape Falcon (U.S./Canada Border to Cape Falcon, Oregon) and south of Cape Falcon (Cape Falcon, Oregon to the U.S./Mexico Border).

The table below lists the inseason actions announced in this document.

The RA consulted with representatives of the Council, International Pacific Halibut Commission (IPHC), Washington Department of Fish and Wildlife (WDFW), and Oregon Department of Fish and Wildlife (ODFW) on May 26, 2011. The information considered during this consultation related to catch to date for halibut incidentally caught in the commercial salmon fishery which was approaching the preseason allocation of halibut recommended by the IPHC (76 FR 14300, March 16, 2011).

Inseason action #5 closed retention of halibut caught incidentally in the ocean salmon commercial fishery from the U.S./Canada border to the U.S./Mexico border. This action was taken to prevent exceeding the preseason allocation. On May 26, 2011, the states recommended this action and the RA concurred; inseason action #5 took effect on May 28, 2011. This inseason action remained in effect until superseded by inseason action #12 which took effect on July 29, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, WDFW, and ODFW on June 20, 2011. The information considered during this consultation related to catch of Chinook salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the commercial salmon fishery. The objectives for the May/June commercial salmon fishery north of Cape Falcon were to remain within the quota of 20,600 Chinook salmon and to allow the fishery to remain open through June, if possible, to maximize the value of the commercial harvest (50 CFR 660.408(c)(1)(ix)(B)). Catch rates to date suggested that, without taking inseason action to protract the fishery, the quota would be met prematurely.

Inseason action #6 closed the commercial salmon fishery from the U.S./Canada Border to Cape Falcon, Oregon at 11:59 p.m., June 21, 2011; and reopened the fishery at 12:01 a.m., June 23, 2011 through June 30, 2011, with an open period landing limit of 30 Chinook salmon per vessel. This action was taken to prevent exceeding the quota on Chinook salmon established preseason and to allow the fishery to meet the management objective of remaining open through June. On June 20, 2011, the states recommended this action and the RA concurred; inseason action #6 took effect on June 21, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, WDFW, and ODFW on July 14, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook and coho salmon catch rates compared to quotas and other management measures established preseason for the commercial salmon fishery north of Cape Falcon. The objectives for this fishery were to remain within the 10,300 preseason Chinook salmon guideline and the 12,800 marked coho quota and to extend the season into September, if possible. The rate of catch to date suggested that, without inseason action, the Chinook salmon guideline would be harvested well ahead of the coho quota. This would potentially require closure of the commercial fishery well in advance of the September 15 objective and, therefore, prevent the commercial fishery from fully accessing the coho quota.

Inseason action #7 adjusted the open period landing limit from 50 Chinook and 50 coho per vessel to 30 Chinook and 50 coho per vessel. This action was taken to prevent exceeding the quota on Chinook salmon established preseason and to allow the fishery to meet the management objectives of remaining open throughout the summer and allow access to the coho salmon quota. On July 14, 2011, the states recommended this action and the RA concurred; inseason action #7 took effect on July 15, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, ODFW, and California Department of Fish and Game (CDFG) on July 18, 2011 and July 28, 2011. The information considered during these consultations related to catch of Chinook salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the commercial salmon fishery in the Klamath Management Zone (KMZ). This fishery had a July quota of 1,400 Chinook salmon. At the time of the consultation on July 18, 1,462 Chinook were known to have been harvested in this fishery. The management measures established preseason did not allow transfer of quota from the August fishery to the July fishery to accommodate exceeding the July quota. Chinook harvested in excess of the July quota would have to be accounted for by modifying the August quota. At the time of the follow-up consultation on July 28, the estimated harvest in the July fishery was 1,564. Because harvest exceeded the quota for the July fishery, the Salmon Technical Team (STT) was asked to calculate the impact neutral  1 adjustment for the August quota; that adjustment reduced the August quota established preseason from 1,000 Chinook to 880 Chinook.

Inseason action #8 closed the commercial salmon fishery from Oregon/California border to Humboldt South Jetty (California KMZ) at 11:59 p.m. (midnight), July 18, 2011. This action was taken due to projected attainment of the quota for this fishery. On July 18, 2011, the states and the RA consulted on this action. Automatic closure of a fishery due to projected attainment of quota is authorized by 50 CFR 660.409(a)(1).

Inseason action #9 adjusted the quota for the August commercial salmon fishery in the California KMZ and modified the season and landing limit to August 1 through August 5 with a daily landing limit of 30 Chinook salmon per vessel. This action was taken to meet the management objectives established preseason, specifically to keep harvest within the established quotas. On July 28, 2011, the states recommended this action and the RA concurred; inseason action #9 took effect on August 1, 2011 and remained in effect until superseded by inseason action #13, which took effect on August 2, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, WDFW, and ODFW on July 28, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the recreational salmon fishery north of Cape Falcon, Oregon. At the time of the consultation, Chinook salmon catch rates were projected to result in unutilized quota if no action was taken to modify the open periods and landing limits.

Inseason action #10 modified the recreational fishery from Queets River to Leadbetter Point (Westport Subarea) from 5 days per week (Sunday through Thursday) to 7 days per week, consistent with the subareas north and south of Westport. Inseason action #11 modified the landing limits in the recreational fishery from U.S./Canada Border to Cape Alava (Neah Bay Subarea) and from Cape Alava to Queets River (La Push Subarea) to allow retention of 2 Chinook salmon per angler per day. These actions were taken to allow the recreational fishery greater access to available Chinook salmon. On July 28, 2011, the states recommended these actions and the RA concurred; inseason actions #10 and #11 took effect on August 1, 2011. Inseason action #10 remained in effect until superseded by inseason action #18 which took effect on August 19, 2011. Inseason action #11 remained in effect until superseded by inseason action #20 which took effect on August 29, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i). Modification of recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

The RA consulted with representatives of the Council, IPHC, WDFW, and ODFW on July 28, 2011. The information considered during this consultation related to catch of halibut and Chinook salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason. As discussed above, inseason action #5 closed retention of halibut caught incidental to the commercial salmon fishery, effective May 28, 2011. Updated catch statistics presented by the states determined that a modest amount of halibut quota remained unharvested, amounting to somewhat less than 3,000 pounds of halibut (landed, head-on) or approximately 118 to 148 halibut.

Inseason action #12 re-opened incidental halibut retention in the commercial salmon fishery with a landing limit of 1 halibut per vessel for each 7 consecutive days, Friday through Thursday. On July 28, 2011, the states recommended this action and the RA concurred; inseason action #12 took effect on July 29, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, ODFW, and CDFG on August 2, 2011. The information considered during this consultation related to catch of Chinook salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the commercial salmon fishery in the Klamath Management Zone (KMZ). The quota, landing limit, and duration of this fishery were modified under inseason action #9 to mitigate the impact of exceeding the July quota; the modified August quota was 880 Chinook salmon, the modified season was August 1 through August 5 with a daily landing limit of 30 Chinook salmon per vessel. In the first day of this fishery, estimated landings totaled 325 Chinook salmon, leaving only 555 Chinook. The STT was of the opinion that catch rates were not likely to decrease during this short fishery, and stable or increasing catch rates would result in exceeding the quota. Additional inseason action was necessary to avoid exceeding the quota for the August fishery.

Inseason action #13 closed the commercial salmon fishery from Oregon/California border to Humboldt South Jetty (California KMZ) at 11:59 p.m. (midnight), August 2, 2011. This action was taken due to projected attainment of the quota for this fishery. On August 2, 2011, the states and the RA consulted on this action. Automatic closure of a fishery due to projected attainment of quota is authorized by 50 CFR 660.409(a)(1).

The RA consulted with representatives of the Council, WDFW, and ODFW on August 3, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the recreational salmon fishery north of Cape Falcon, Oregon. Due to reduced fishing effort as compared with last year, Chinook salmon catch was lower than anticipated preseason.

Inseason action #14 modified the daily bag limit in the recreational fishery from Queets River to Leadbetter Point (Westport subarea) and from Leadbetter Point to Cape Falcon (Columbia River subarea) to allow retention of 2 Chinook salmon per angler per day. This action was taken to allow recreational fisheries access to available Chinook salmon. On August 3, 2011, the states recommended this action and the RA concurred; inseason action #14 took effect on August 7, 2011 and remained in effect until superseded by inseason action #16, which took effect on August 14, 2011. Modification of recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

The RA consulted with representatives of the Council, WDFW, and ODFW on August 11, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the commercial salmon fishery north of Cape Falcon, Oregon. The management objectives for the summer commercial fishery were to fully utilize the allowable catch of Chinook and coho salmon while not exceeding the quota, and to provide opportunity for salmon harvest into September. At the time of the consultation on August 11, increased participation in the fishery had resulted in increased landings, with the result that 90 percent of the Chinook guideline had been harvested; therefore, inseason action was necessary to stay within the Chinook salmon guideline set preseason.

Inseason action #15 suspended the commercial fishery, north of Cape Falcon, scheduled to be open August 12 through August 16. This action was taken to avoid exceeding the Chinook salmon guideline while managers determined exactly how much allowable Chinook salmon catch remained. On August 11, 2011, the states recommended this action and the RA concurred; inseason action #15 took effect on August 12, 2011 and remained in effect until superseded by inseason action #19, which was effective on August 19, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, WDFW, and ODFW on August 12, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the recreational salmon fishery north of Cape Falcon, Oregon. Recent upsurge in effort and catch per unit effort in the Westport subarea resulted in accelerated harvest that threatened to utilize the available Chinook salmon ahead of the management objective to allow recreational fishing into September.

Inseason action #16 modified the daily landing limit for the recreational fishery from Queets River to Leadbetter Point (Westport subarea) and from Leadbetter Point to Cape Falcon (Columbia River subarea) to allow retention of two salmon per angler per day, only one of which could be a Chinook salmon. On August 12, 2011, the states recommended this action and the RA concurred; inseason action #16 took effect on August 14, 2011. Modification of recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

The RA consulted with representatives of the Council, WDFW, and ODFW on August 16, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the recreational salmon fishery north of Cape Falcon, Oregon. The spring recreational fishery ended June 25 with a remaining quota of 2,500 mark-selective Chinook salmon unharvested; the STT calculated that unutilized spring quota would be equivalent to 1,200 non-mark-selective Chinook salmon in the summer fishery and should be distributed proportionally among the four subareas. Even with the additional quota, without further inseason adjustment, the Westport subarea was at risk of exceeding its allowable catch of Chinook salmon.

Inseason action #17 rolled-over unutilized Chinook salmon quota from the spring recreational fishery north of Cape Falcon to the summer recreational fishery on an impact neutral basis, and distributed the adjusted quota proportionally among the four subareas as follows: Columbia River (+310 Chinook), Westport (+700 Chinook), La Push (+60 Chinook), and Neah Bay (+130 Chinook). This action was taken to allow fishing opportunity on unutilized quota.

Inseason action #18 modified the recreational fishery in the Westport subarea (Queets River to Leadbetter Point) by limiting fishing to Sunday through Thursday. This action superseded inseason action #10, which took effect August 1, 2011. This action was taken to prevent the Westport subarea from exceeding its allowable catch of Chinook salmon.

On August 16, 2011, for inseason actions #17 and #18, the states recommended these actions and the RA concurred; both inseason actions took effect on August 19, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, WDFW, and ODFW on August 17, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the commercial salmon fishery north of Cape Falcon, Oregon. The management objectives for the summer commercial fishery were to fully utilize the allowable catch of Chinook and coho salmon while not exceeding the quota, and to provide opportunity for salmon harvest into September. Inseason action #15 suspended the commercial salmon fishery north of Cape Falcon on August 12. Consultation on August 17 indicated 1,070 Chinook salmon remained from the guideline set preseason.

Inseason action #19 provided a one-day opening of the commercial salmon fishery from the U.S./Canada border to Cape Falcon, Oregon on Friday, August 19, 2011, with a landing limit of 12 Chinook and 50 coho per vessel. On August 17, 2011, the states recommended this action and the RA concurred. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, WDFW, and ODFW on August 23, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the recreational salmon fishery north of Cape Falcon, Oregon. With limited Chinook salmon remaining to be caught, the management concern was to keep the fishery open to access available coho quota.

Inseason action #20 modified the recreation salmon fishery from the U.S./Canada border to Cape Falcon, Oregon to allow fishing seven days per week with no retention of Chinook salmon, effective August 29, 2011. On August 23, 2011, the states recommended this action and the RA concurred. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i). Modification of recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

The RA consulted with representatives of the Council, WDFW, and ODFW on August 24, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the commercial salmon fishery north of Cape Falcon, Oregon. The management objective for this fishery is to fully access the available coho quota while not exceeding the available Chinook salmon guideline.

Inseason action #21 provided a three-day opening of the commercial salmon fishery from the U.S./Canada border to Cape Falcon, Oregon, from August 27 through August 29, 2011, with a landing limit of 12 Chinook and 75 coho per vessel. On August 24, 2011, the states recommended this action and the RA concurred. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, ODFW, and CDFG on August 25, 2011. The information considered during this consultation related to catch of coho salmon to date and coho salmon catch rates compared to quotas and other management measures established preseason for the recreational salmon fishery south of Cape Falcon. The 2011 salmon management measures (76 FR 25246, May 4, 2011) specified that any remainder of the mark selective coho quota from the July-August fishery would be transferred on an impact neutral basis to the September non-selective coho quota. The STT calculated the transfer would add 2,959 coho to the September quota, resulting in an adjusted quota of 5,959 coho for September. The management objective for this fishery is to allow access to all available quota.

Inseason action #22 modified the recreational salmon fishery from Cape Falcon to Humbug Mountain, Oregon, opening the non-mark-selective coho fishery September 1 through September 10, 2011 or until attainment of the adjusted quota of 5,959 coho, all salmon, two fish per day. On August 25, 2011, the states recommended this action and the RA concurred. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i). Modification of recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

The RA consulted with representatives of the Council, WDFW, and ODFW on August 31, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the commercial salmon fishery north of Cape Falcon, Oregon. At the time of the consultation a modest quantity of Chinook salmon remained available, as well as a significant amount of the coho quota. The management objective for this fishery was to access fully the available coho quota while not exceeding the available Chinook salmon guideline.

Inseason action #23 provided two four-day openings of the commercial salmon fishery from the U.S./Canada border to Cape Falcon, Oregon, from September 3 through September 6, 2011 and from September 10 through September 13, 2011, with a landing limit of 20 Chinook and 100 coho per vessel. On August 31, 2011, the states recommended this action and the RA concurred. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, WDFW, and ODFW on August 31, 2011. The information considered during this consultation related to catch of Chinook and coho salmon to date and Chinook salmon catch rates compared to quotas and other management measures established preseason for the recreational salmon fishery north of Cape Falcon, Oregon. Management objectives are to fully access available coho quota without exceeding the Chinook guideline and to keep the recreational fisheries open through the Labor Day holiday (50 CFR 660.408(h)(3)). Taken as a whole, the north of Cape Falcon recreational fishery had sufficient coho to remain open; one subarea, La Push, had almost exhausted its coho quota. At the time of the consultation, it was estimated that 2,721 Chinook remained available for harvest.

Inseason action #24 transferred unutilized coho quota from the Neah Bay subarea to the La Push subarea on an impact neutral basis. The STT calculated that removing 1,000 coho from Neah Bay would achieve an effective transfer of 850 coho to La Push.

Inseason action #25 superseded inseason action #20 to allow retention of one Chinook salmon per day per angler in the recreational fishery north of Cape Falcon, effective September 5, 2011.

On August 31, 2011, the states recommended these actions and the RA concurred. Inseason action #24 took effect immediately. Inseason action #25 took effect September 5, 2011. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i). Modification of recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

The RA consulted with representatives of the Council, ODFW, and CDFG on September 6, 2011. The information considered during this consultation related to catch of coho salmon to date and coho salmon catch rates compared to quotas and other management measures established preseason for the recreational salmon fishery south of Cape Falcon. At the time of the consultation, catch data for September 1 through 5 indicated that catch per unit effort was greatly exceeding expectations and exceeding the quota would likely occur due to the time needed to notify the public of further inseason action. Inseason action was necessary to limit the amount by which the quota would be exceeded.

Inseason action #26 modified the recreational salmon fishery from Cape Falcon to Humbug Mountain, Oregon. The non-mark-selective coho fishery was closed at 11:59 p.m. (midnight), September 7, 2011; the all salmon except coho fishery resumed on September 8, 2011. On September 6, 2011, the states recommended this action and the RA concurred. Modification of quota and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i). Modification of recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

All other restrictions and regulations remain in effect as announced for the 2011 Ocean Salmon Fisheries and previous inseason actions.

The RA determined that the best available information indicated that the catch and effort data, and projections, supported the above inseason actions recommended by the states. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with these Federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the date the action was effective, by telephone hotline number (206) 526-6667 and (800) 662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of the regulatory actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (76 FR 25246, May 4, 2011), the West Coast Salmon Plan, and regulations implementing the West Coast Salmon Plan 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time the fishery catch and effort data were collected to determine the extent of the fisheries, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best available scientific information, thus allowing fishers access to the available fish at the time the fish were available while ensuring that quotas are not exceeded. The AA also finds good cause to waive the 30-day delay in effectiveness required under 5 U.S.C. 553(d)(3), as a delay in effectiveness of these actions would allow fishing at levels inconsistent with the goals of the Salmon Fishery Management Plan and the current management measures.

These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866.

The groundfish fisheries in the exclusive economic zone off Alaska are managed under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Fishery Conservation and Management Act. Amendment 80 to the FMP implemented the Amendment 80 Program. Regulations implementing Amendment 80 were published on September 14, 2007 (72 FR 52668). These regulations are located at 50 CFR part 679.

The Amendment 80 Program is commonly known as a limited access privilege program. Eligible fishery participants may receive exclusive access to specific fishery resources if certain conditions are met. Under the Amendment 80 Program, NMFS issues a quota share (QS) permit to a person holding the catch history of an original qualifying non-American Fisheries Act (AFA) trawl catcher/processor that met specific criteria designated by Congress under the Capacity Reduction Program (CRP) (Pub. L. 108-447). NMFS determined that 28 vessels met the criteria specified in the CRP. These vessels comprise the originally qualifying Amendment 80 vessels. NMFS determined the amount of QS issued based on the catch history of six Amendment 80 species (Atka mackerel, Aleutian Islands Pacific ocean perch, flathead sole, Pacific cod, rock sole, and yellowfin sole) in the Bering Sea and Aleutian Islands Management Area, from 1998 through 2004, derived from the 28 originally qualifying non-AFA trawl catcher/processors.

Generally, the Amendment 80 Program is intended to facilitate the formation of fishing cooperatives, which have been shown to improve fishery management. Amendment 80 participants who join a fishing cooperative receive cooperative quota, which are exclusive harvest privileges for a portion of these fishery resources. The allocation of CQ allows vessel operators to make operational choices to improve fishing practices and reduce discards of fish, because the incentives to maximize catch rates to capture a share of the available catch are removed. Cooperatives fishing under an exclusive harvest privilege can tailor their operations to more efficiently target species, avoid areas with undesirable bycatch, and improve the quality of products produced. Participants in the limited access fishery do not receive an exclusive harvest allocation, and may have little incentive to coordinate harvest strategies if they perceive a benefit by competing with other participants in a race for fish. A person who chooses to join a cooperative must designate the catch derived from his QS to the cooperative, the specific vessels that will be fishing for that cooperative, and the License Limitation Program (LLP) licenses assigned to each designated vessel.

Amendment 93 results in two changes to the Amendment 80 Program. First, it reduces the minimum number of persons and licenses required to form a harvesting cooperative. Previously, the Amendment 80 program required that a minimum of three unique persons and nine QS permits must be assigned to a cooperative. Reducing the number of unique persons and number of QS permits could provide additional opportunities for QS holders to establish cooperative relationships that could reduce the number of participants engaged in the race for fish. The Council and NMFS expect that relaxing the Amendment 80 cooperative formation standards by reducing the number of QS permits that must be assigned and the number of unique vessel owners required will (1) provide additional opportunities to QS holders to form cooperatives because more relationships are possible; (2) diminish the negotiating leverage of vessel owners who may be necessary to meet the threshold requirements under more stringent cooperative formation standards; (3) reduce the potential risk of any one company being unable to negotiate settlement and be able to fish only in the limited access fishery; and (4) reduce the incentive for members of a cooperative to attempt to create conditions that are unfavorable for certain fishery participants to form a cooperative.

The second revision under Amendment 93 requires that a person assign all QS permits either to one or more cooperatives or to the limited access fishery, but not to both during the same calendar year. This revision is needed to reduce the incentive for a cooperative member to prevent another person from forming a cooperative in order to force them into a race for fish in the limited access fishery. Excluding a person from cooperative membership could benefit a cooperative, or specific members of a cooperative who choose to participate in both a cooperative and the limited access fishery. For example, if a cooperative member who holds multiple QS permits and vessels can assign one vessel and QS permit to the limited access fishery and another vessel and QS permit to a cooperative, that member could harvest more fish in the limited access fishery than would be derived from their QS if it were assigned to a cooperative. A person participating in both a cooperative and the limited access fishery has an incentive to exclude participants in the limited access fishery from joining a cooperative or creating an additional cooperative. For example, a person participating in a cooperative and the limited access fishery could seek to exclude a person from fishing in a cooperative if the person to be excluded was unlikely to be able to join another cooperative. Under that scenario, the person excluded from a cooperative could be forced into the Amendment 80 limited access fishery. If the person participating in the cooperative also assigned a vessel to the Amendment 80 limited access fishery that was capable of effectively competing against the other Amendment 80 limited access fishery participants, that person could maximize their catch in a race for fish. Under that scenario, a person with participation in both an Amendment 80 cooperative and the limited access fishery would have little incentive to allow a person to join a cooperative because they would lose access to fish that would otherwise be available in the Amendment 80 limited access fishery.

The revision under Amendment 93 requiring a person to assign all QS permits either to a cooperative or to the limited access fishery, but not both, is not applicable until the first fishing year 2 years after the final rule effective date. Because this final rule is effective in 2011, this requirement does not apply until the 2014 fishing year and QS holders must assign all QS permits and vessels to one or more cooperatives or to the limited access fishery by the Amendment 80 annual cooperative application deadline of November 1, 2013. The 2-year delay allows vessel owners time to coordinate with other participants in the fishery and determine if they will assign all of their QS permits to either one or more cooperatives, or the limited access fishery. NMFS will not allow owners to assign QS permits or vessels to one or more cooperatives and the Amendment 80 limited access fishery on the annual cooperative applications submitted to NMFS by the November 1, 2013 deadline.

NMFS published a notice of availability for Amendment 93 on July 28, 2011 (76 FR 45219). The public comment period on Amendment 93 ended on September 26, 2011. On August 10, 2011, NMFS published a proposed rule to implement Amendment 93 (76 FR 49417). The public comment period for the proposed rule ended on September 9, 2011. Additional information on this action was provided in the preamble of the proposed rule and is not repeated here.

NMFS received three comments on Amendment 93 and the proposed rule during the public comment period for the proposed rule. One public comment did not directly address Amendment 93 or the proposed rule, but was a general comment related to the Federal Government's management of marine resources and provided a general criticism of fishery management. The other two comments were in support of this action. All comments are addressed in the Response to Comment section for this rule. The Secretary of Commerce approved Amendment 93 on October 25, 2011. No modifications were made to the proposed rule.

Comment 1: The commenter raises general concerns about NMFS' management of fisheries, asserting that fishery policies have not benefited American citizens. The commenter also believes that NMFS should not be allowed to manage fisheries.

Response: This comment is not specifically related to the proposed rule. The comment recommends broad changes to fisheries management and provides opinions of the Federal Government's general management of marine resources that are outside the scope of this action. The commenter did not raise new relevant issues or concerns that have not been addressed in the preamble to the proposed rule or the EA/RIR/FRFA prepared to support this action.

Comment 2: The commenter strongly supports Amendment 93 and the proposed regulations. The commenter strongly urges NMFS to implement the action at the earliest possible time, preferably in time to be effective for the 2012 fishing year, in order to maximize the benefits of this amendment.

Response: NMFS agrees that this action is beneficial to participants in the Amendment 80 sector and should be implemented as soon as possible.

Comment 3: The commenter supports Amendment 93 and continues to support the objective to promote full participation of Amendment 80 vessels in cooperatives to facilitate optimal harvest of Amendment 80 QS through intra and inter-sector trades throughout the year. The commenter anticipates that Amendment 93 will result in open and productive interactions between all cooperatives within the Amendment 80 sector, but expressed concern about cooperatives that may be unwilling to transfer unharvested allocations, which could result in harvest of an Amendment 80 species that is less than the TAC established for that species. The commenter is concerned that unharvested cooperative allocations of Amendment 80 species could result in the Council reducing the TAC of Amendment 80 species because it assumes the unharvested QS indicates that TACs were set too high. For this reason, the commenter may seek changes in the allocation system in the future if some cooperatives are unwilling to transfer unused QS.

Response: NMFS agrees that Amendment 93 promotes full participation of Amendment 80 vessels in cooperatives and expects productive interactions between Amendment 80 cooperatives. The commenter may approach the Council in the future with suggestions for changes to the Amendment 80 program.

NMFS did not make any changes to the proposed rule published on August 10, 2011 (76 FR 49417).

The Administrator, Alaska Region, NMFS, determined that FMP Amendment 93 is necessary for the conservation and management of the BSAI groundfish fishery and that it is consistent with the MSA and other applicable laws.

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

Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive the 30-day delay in effectiveness for 50 CFR 679.91(h)(3)(ii) and (iii) as amended in this rule. The 30-day delay in effectiveness of these sections is impracticable and contrary to the public interest. Amendment 93 reduces the number of unique persons and number of QS permits required to form a cooperative in the Amendment 80 Program. Reducing the number of unique persons and number of QS permits can provide additional opportunities for QS holders to establish cooperative relationships that could reduce the number of participants engaged in the race for fish. The annual Amendment 80 Cooperative Quota Permit Application deadline is November 1 of each year and NMFS has informed Amendment 80 participants that they may submit cooperative applications under the minimum formation thresholds established by Amendment 93. However, NMFS cannot process these applications until the new minimum formation thresholds contained in 50 CFR 679.91(h)(3)(ii) and (iii) are effective. Immediate effectiveness of these sections will allow NMFS to process applications submitted for Amendment 80 cooperatives in a timely manner which will provide the fishing industry the earliest possible opportunity to plan and conduct its fishing operations with respect to new cooperative formation requirements before the start of the 2012 fishing year in January. A 30-day delay in effectiveness would prevent NMFS from processing Amendment 80 cooperative applications in a timely manner and would create uncertainty within the industry and frustrate the affected industry's ability to plan for the upcoming fishing year. For these reasons, NMFS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(3) for 50 CFR 679.91(h)(3)(ii) and (iii). NMFS is not waiving the 30-day delay in effectiveness for 50 CFR 679.91(h)(3)(xii) because immediate effectiveness of that section is not necessary.

Pursuant to section 604 of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., a FRFA was prepared for this action. The FRFA incorporates the IRFA, and includes a summary of the significant issues raised by public comments in response to the IRFA, and NMFS' responses to those comments, and a summary of the analyses completed to support the action. A copy of the EA/RIR/FRFA prepared for this final rule is available from NMFS (see ADDRESSES ). A description of this action, its purpose, and its legal basis are contained at the beginning of the preamble to this final rule and are not repeated here.

NMFS published the proposed rule to implement Amendment 93 on August 10, 2011 (76 FR 49417), and the public comment period closed on September 9, 2011. An IRFA was prepared and summarized in the “Classification” section of the preamble to the proposed rule. NMFS received three public comments on Amendment 93 and the proposed rule. None of these comments addressed the IRFA.

This action modifies the cooperative formation standards and requirements for assigning QS and Amendment 80 vessels to either a cooperative or the limited access fishery. Six alternative approaches for modifying cooperative formation criteria were considered. Alternative 1: Status quo. A minimum of three unique QS holders holding at least nine QS permits are required to form a cooperative. Alternative 2: Reduce the number of unique QS holders required to form a cooperative from the existing three QS holders to two or one unique QS holder. Alternative 3: Reduce the number of QS permits required to form a cooperative from the existing nine permits to eight, seven, six, or three permits. Alternative 4: Reduce both the number of unique QS holders and the number of QS permits required to form a cooperative (combination of Alternatives 2 and 3 above). Alternative 5: Allow a cooperative to form with a minimum of three unique QS holders holding at least nine QS permits (status quo), or a single or collective group of entities that represent 20 percent, 25 percent, or 30 percent of the sector QS. Alternative 6: Require that a cooperative accept all persons who are otherwise eligible to join a cooperative subject to the same terms and conditions as all other members. The Council recommended Alternative 4, reducing the number of unique QS holders to two unique persons and reducing the number of QS permits required to form a cooperative to seven QS permits, as its preferred alternative. The Council rejected Alternatives 2, 3, 5, and 6 because public comments and the analysis prepared for this action indicated these alternatives likely would not offer substantially greater cooperative formation opportunities or have substantially different economic implications than the status quo alternative.

Two alternative approaches were considered for the QS and vessel assignment provision. Alternative 1: status quo. QS holders with multiple QS permits and vessels may assign those QS permits and vessels to one or more cooperatives and the limited access fishery. Alternative 2: QS holders with multiple QS permits and vessels may assign those QS permits and vessels to one or more cooperatives or the limited access fishery, but not both. Alternative 2 would be effective two years after the effective date of the final rule. The Council rejected the status quo alternative because experience under the Amendment 80 program has indicated that the status quo cooperative formation criteria may disadvantage limited access fishery participants and create incentives to discourage fishing cooperative formation.

Collectively, the alternatives and options considered under these two proposed actions provided a broad suite of alternatives from which the Council chose to modify the factors affecting cooperative formation.

The overall impact of this action to small entities is expected to be positive. Impacts from Amendment 93 would accrue differentially (i.e., some entities could be negatively affected and others positively affected). The Council considered an extensive range of alternatives and options as it designed and evaluated the potential for changes to the Amendment 80 sector, including the “no action” alternative.

Compared with the status quo, the action selected by the Council minimizes the adverse economic impacts on the directly regulated small entity. The alternatives implemented in this final rule are expected to provide greater opportunity for cooperative formation among the various Amendment 80 businesses. In no case are these combined impacts expected to be substantial. Alternative 4 for the cooperative formation standards, which requires two unique persons and seven QS permits to form a cooperative, is not expected to adversely affect the existing Amendment 80 cooperatives, but could provide additional cooperative formation opportunities for participants in the Amendment 80 limited access fishery. For the QS and Amendment 80 vessel assignment component of this action, Alternative 2 will reduce the incentive for owners of multiple vessels to exclude a person from a cooperative. This alternative is expected to enhance the likelihood of cooperative formation.

For purposes of a FRFA, the U.S. Small Business Administration has established that a business involved in fish harvesting is a small business if it is independently owned and operated, not dominant in its field of operation (including its affiliates), and has combined annual gross receipts not in excess of $4.0 million for all its affiliated operations worldwide. The FRFA estimates that 28 non-AFA trawl catcher/processors could generate Amendment 80 QS, based on the provisions of the Amendment 80 Program. Those persons who apply for and receive Amendment 80 QS are eligible to fish in the Amendment 80 sector, and those QS holders will be directly regulated by this action. Based on the known affiliations and ownership of the Amendment 80 vessels, all but one of the Amendment QS holders are categorized as large entities for the purpose of the RFA under the principles of affiliation, due to their participation in a harvest cooperative or through known ownership of multiple vessels, co-ownership and “shares” ownership among vessels, and other economic and operational affiliations. Thus, the FRFA estimates that only one small entity will be directly regulated by the proposed action. It is possible that this one small entity could be linked by company affiliation to a large entity, which may then qualify that entity as a large entity, but complete information is not available to determine any such linkages.

This final rule will not change existing reporting, recordkeeping, or other compliance requirements. This final rule does not contain a collection-of-information requirement subject to the Paperwork Reduction Act.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS has posted a small entity compliance guide on its Web site at http://alaskafisheries.noaa.gov/sustainablefisheries/amds/80/default.htm. A letter to permit holders that also serves as a small entity compliance guide was prepared.

For the reasons set out in the preamble, 50 CFR part 679 is amended as follows:

The king and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) are managed under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Fishery Conservation and Management Act. Amendments 18 and 19 to the FMP implemented the CR Program. Regulations implementing the FMP, including the CR Program, are located at 50 CFR part 680.

Under the CR Program, NMFS issued quota share (QS) to persons based on their qualifying harvest histories in the BSAI crab fisheries during a specific time period. Each year, the QS issued to a person yields an amount of individual fishing quota (IFQ), which is a permit providing an exclusive harvesting privilege for a specific amount of raw crab pounds, in a specific crab fishery, in a given season. The size of each annual IFQ allocation is based on the amount of QS held by a person in relation to the total QS pool in a crab fishery. For example, a person holding QS equaling 1 percent of the QS pool in a crab fishery would receive IFQ to harvest 1 percent of the annual total allowable catch in that crab fishery. Catcher processor license holders were allocated catcher processor vessel owner (CPO) QS for their history as catcher processors; and catcher vessel license holders were issued catcher vessel owner (CVO) QS based on their history as a catcher vessel.

Under the CR Program, 97 percent of the initial allocation of QS was issued to vessel owners as CPO or CVO QS; the remaining 3 percent was issued to vessel captains and crew as crew QS based on their harvest histories as crew members onboard crab fishing vessels. Ninety percent of the annual CVO IFQ is issued as A shares, or Class A IFQ, which are subject to landing requirements in specific geographic regions, and must be delivered to a processor holding unused individual processor quota (IPQ). The remaining 10 percent of the annual CVO IFQ is issued as B shares, or Class B IFQ, which may be delivered to any processor and are not subject to regionalization. CPO, CPC, and CVC IFQ are not subject to regionalization and are not required to be matched with a processor holding IPQ.

NMFS also issued processor quota shares (PQS) to processors based on their qualifying processing histories in the BSAI crab fisheries during a specific time period. These PQS yield annual IPQ, which represent a privilege to receive a certain amount of crab harvested with Class A IFQ. IPQ are issued in an amount equivalent to the Class A IFQ, creating a one-to-one correspondence between Class A IFQ and IPQ. Prior to the start of a crab fishing season, Class A IFQ and IPQ holders match their shares with one another, thereby determining their markets for the coming year. These matches may be modified during the crab season, but both parties must consent to any modifications.

The CR Program requires holders of Class A IFQ to deliver their catch to processors holding IPQ for a specific crab fishery within a specific geographic region. Potential disputes among harvesters and processors during price and delivery negotiations can occur, and the share matching requirements can exacerbate these disputes. To fairly address potential price and delivery disputes that may arise between Class A IFQ holders and IPQ holders, the CR Program includes an arbitration system. Disputes are most likely to occur in cases where the Class A IFQ holder is not affiliated with an IPQ holder through common ownership or control and the IPQ holder will not consent to modification of the preseason share matching, thereby allowing the IPQ holder to dictate prices or other conditions without the ability of the Class A IFQ holder to move to an alternative market. Class A IFQ holders who are unaffiliated, or independent, of IPQ holders are commonly known as unaffiliated Class A IFQ holders. Conversely, Class A IFQ holders who are affiliated with IPQ holders through common ownership and control are known as affiliated Class A IFQ holders. Affiliated Class A IFQ holders are not eligible to use the arbitration system to settle price or other disputes. Affiliated Class A IFQ holders do not require an arbitration system, because they are integrated with IPQ holders and do not have distinct and potentially adversarial negotiating positions as may be the case with unaffiliated Class A IFQ and IPQ holders.

In the event of a dispute, the arbitration system allows unaffiliated Class A IFQ holders to initiate an arbitration proceeding to allow an independent third party to review harvester and processor negotiation positions and provide an independent and binding resolution to issues under dispute. Regulations describing the arbitration system are found at 50 CFR 680.20. An extensive discussion of the components of the arbitration system is found in the preamble to the proposed rule (October 24, 2004; 69 FR 63200) and final rule (March 2, 2005; 70 FR 10174) that implemented the CR Program, as well as in the final EIS prepared for the CR Program, and is not reiterated here (see ADDRESSES ).

To facilitate arbitration proceedings, the arbitration system establishes a series of contractual requirements that CVO QS, PQS, Class A IFQ, and IPQ holders must meet that dictate how the arbitration system will function. Regulations require that all unaffiliated CVO QS and Class A IFQ holders join an Arbitration Organization (AO). Similarly, affiliated CVO QS and Class A IFQ holders are required to join a separate AO. PQS and IPQ holders are required to join a third AO. Regulations further require that these three AOs enter into a series of contracts that will allow the arbitration system to function. Although affiliated Class A IFQ and IPQ holders must join AOs, the primary role of the arbitration system is to facilitate negotiations among the unaffiliated Class A IFQ and IPQ holders. Therefore, this final rule would primarily affect unaffiliated Class A IFQ and IPQ holders. For clarity in this final rule, the AO representing unaffiliated CVO QS and Class A IFQ holders will be called the unaffiliated Class A IFQ arbitration organization, the AO representing affiliated CVO QS and Class A IFQ holders will be called the affiliated Class A IFQ arbitration organization, and the AO representing PQS and IPQ holders will be called the IPQ arbitration organization.

Under the arbitration system, all AOs must establish contracts to hire an independent third-party data provider, who will provide up-to-date information on matches between Class A IFQ and IPQ holders for crab deliveries and contracts to hire independent experts to facilitate arbitration proceedings. Only the unaffiliated Class A IFQ AOs and the IPQ AOs can enter into contracts to hire: (1) A market analyst, who provides a pre-season market report of likely market conditions for each crab fishery to aid in price negotiations and arbitrations; (2) a formula arbitrator, who prepares a non-binding price formula that describes the historic division of first whole-sale values among harvesters and processors that can be used in price negotiations and arbitrations; and (3) a contract arbitrator, who reviews the positions of the parties during an arbitration proceeding and issues a binding decision based on a last-best offer form of arbitration.

Under current regulations, contracts with the market analyst, formula arbitrator, and contract arbitrator must be established by June 1 and can only be established by the mutual agreement of unaffiliated Class A IFQ AOs and IPQ AOs. “Mutual agreement,” as defined in 50 CFR 680.2, requires the consent and agreement of unaffiliated Class A IFQ AOs that represent an amount of unaffiliated Class A IFQ equal to more than 50 percent of all the unaffiliated Class A IFQ in a fishery, and IPQ AOs that represent an amount of IPQ equal to more than 50 percent of all the IPQ in a fishery based upon the Annual Arbitration Organization Reports. This mutual agreement requirement is intended to ensure that the majority of the unaffiliated Class A IFQ and IPQ holders reach agreement on the contracts that will provide necessary services for the functioning of the arbitration system, but avoid the potential that the process could be compromised by the inability of all unaffiliated Class A IFQ or IPQ holders to reach unanimity on the contracts.

During an arbitration proceeding, the contract arbitrator is required to consider the market report and the non-binding price formula when considering the offers provided by the parties to the arbitration proceeding. Because the market report and the non-binding price formula play a central role in the decision-making process of the contract arbitrator, the information used in their preparation and the timing of their production can affect their utility and importance.

As the CR Program has progressed, it has become clear to the unaffiliated Class A IFQ and IPQ holders—as well as to the market analyst, the formula arbitrator, and the contract arbitrator—that certain aspects of the existing requirements for the timing and content of the market report and non-binding price formula limit the effectiveness of the arbitration system. This amendment modifies four aspects of the arbitration system to improve its effectiveness by (1) Allowing AOs to mutually agree to establish contracts that would forgo the preparation of market reports and non-binding price formulas if a CR Program crab fishery is unlikely to (and does not) open; (2) modifying the timeline for release of the non-binding price formula for the western Aleutian Islands golden king crab (WAG) and eastern Aleutian Islands golden king crab (EAG) fisheries; (3) modifying the information used in the market report and allowing AOs to mutually agree to modify the timing for release of the market report in each CR Program fishery; and (4) clarifying the authority of the AOs, market analyst, formula arbitrator, contract arbitrators, and third-party data provider to adopt additional arbitration system procedures that are not in conflict with arbitration system regulations. The need for and effect of each of these actions are described in greater detail below.

This action allows AOs representing unaffiliated Class A IFQ holders and IPQ holders to mutually agree that when a crab fishery is unlikely to open, neither a market report nor a non-binding formula would be prepared for the fishery. If mutual agreement is reached, this action requires the AOs representing unaffiliated Class A IFQ holders and IPQ holders to include provisions in the contracts with the market analyst and formula arbitrator that reflect the mutual agreement of the AOs to forgo preparation of a market report and non-binding price formula for the fishery; requires preparation of the market report and non-binding price formula in the event that an opening is later announced for the fishery; and specifies a timeline for the production of the market report and non-binding price formula, which must occur before June 30.

This action allows the AOs, and, by extension, the unaffiliated Class A IFQ and IPQ holders who are members of the AOs and who pay the costs for producing these reports, the option to forgo incurring expenses associated with the production of those reports when it appears unlikely that a fishery will open. The potential cost savings to the AOs could range from a few thousand to several tens of thousands of dollars.

Status of stocks for CR Program crab fisheries is assessed annually and it is possible that some CR Program crab fisheries will not open in a given year. For example, during the first five years of the CR Program, the western Aleutian Islands red king crab and Pribilof Islands red and blue king crab fisheries have failed to open, and the Saint Matthew Island blue king crab fishery has only been open during the 2009-2010 and 2010-2011 fishing seasons. Regardless of whether a fishery is scheduled to open, regulations at 50 CFR 680.20(e)(4)(ii) require that the market report and non-binding price formula must be prepared for each crab fishery no later than 50 days before the opening date for the first crab fishing season for that crab QS fishery. Because most crab fisheries have an October 15 season opening date, most of the market reports and non-binding price formulas must be produced by August 26 each year. However, in most cases, the State of Alaska does not announce whether a CR Program crab fishery will be open or closed until October 1.

This action allows the AOs to mutually agree to forgo the production of the market report and non-binding price formula if a fishery is unlikely to and does not open. This agreement must be included in the contract the AOs establish with the market analyst and formula arbitrator. If the AOs mutually agree to include this provision in their contract with the market analyst and the formula arbitrator, the contract also must require the production of the market report and non-binding price formula in the event that a fishery previously not anticipated to open does actually open. The revised regulations at § 680.20(f) and (g) leave the details about the timeline for producing these reports in the event of a fishery opening to the mutual agreement of the AOs, only requiring that the market report and non-binding price formula be produced prior to June 30. The mutual agreement to forgo the issuance of a market report must be incorporated into the contract with the market analyst.

Regulations at § 680.20(e)(5) require that the AOs provide NMFS with the names of the persons serving as the market analyst and provide copies of the contracts with the market analyst and formula arbitrator no later than June 1 of each year. Therefore, the contract with the market analyst and formula arbitrator, including any terms that would allow forgoing the production of a market report and non-binding price formula for a fishery, must be incorporated in the contract between the AOs and the market analyst no later than June 1. If the AOs do not reach mutual agreement on these terms by June 1, then the existing regulatory requirements to produce a market report and non-binding price formula no later than 50 days before a fishery opening apply.

As discussed above, most fisheries have an October 15 opening date, and under this action, most market reports must be produced no later than August 26. The Council recommended this approach so that AOs unable to reach mutual agreement on whether to forgo production of market reports and non-binding price formulas would have sufficient time to comply with the 50-day requirements at § 680.20 for their production.

The Council determined, and NMFS agrees, that production of a market report for fisheries unlikely to open is unnecessary and presents a financial burden to fishery participants. Elimination of the requirement to produce a market report for fisheries unlikely to open presents a minor risk that participants in a fishery will have inadequate information to inform price negotiations in the event that a fishery unexpectedly opens; however, NMFS agrees with the Council that this risk is mitigated by the requirement that AOs develop a contingency plan for describing how a market report will be produced when a fishery unexpectedly opens or when AOs disagree concerning whether a fishery will open.

Under current State of Alaska regulations, the EAG and WAG fisheries open on August 15 of each year. This opening date means that the non-binding price formula developed for both fisheries must be released no later than June 26, as current regulations require that the formula be released at least 50 days prior to the opening date for these fisheries. However, the opening date for the EAG and WAG fisheries prevents the formula arbitrator from using the most current information from the Commercial Operators Annual Report (COAR), which is a key source of information on wholesale prices used in the non-binding price formula. COAR documents are typically not available until early July; therefore, data from the preceding season is not incorporated in the non-binding price formula.

This action amends regulations at § 680.20(g) to require release of the non-binding price formula at least 30 days prior to the start of these fisheries to provide the formula arbitrator time to incorporate data from the most recent COAR. NMFS does not anticipate that producing the non-binding price formula at least 30 days prior to the start of the fisheries, rather than at least 50 days prior to the start of the fisheries, will adversely affect price negotiations. Participants in the fisheries noted that a more complete and current non-binding price formula using COAR data from the most recent EAG and WAG fisheries outweighs any potential disadvantage of a slightly shorter period of time to review the non-binding price formula before fishing begins. The Council determined and NMFS agrees that this action will provide the affected fishing industry with the most recent data for use in the non-binding price formula while providing as much lead time as possible before the start of the fisheries for consideration of the non-binding price formula in any potential negotiations.

Existing regulations at § 680.20(f) require that the market report be released no later than 50 days prior to the opening of a fishery and that it cannot be supplemented with additional information once released. Existing regulations permit the inclusion of publicly available information, as well as data from proprietary sources in the market report. The CR Program established the 50-day release date and prohibition on subsequent supplements to the market report to reduce the risk that the market report could contain proprietary data released during a fishing season. Any such data could unduly influence the results of the market report by creating incentives for processors or harvesters to present data that cannot be reviewed publicly and have that data incorporated in a manner that would influence the results of the market report for the benefit of one party, thereby increasing the risk of tainting the market report with information that could be used for anticompetitive purposes.

To address these concerns, regulations at § 680.20(f)(2)(v) require that any price information contained in the market report (1) include only data that is based on information regarding activities occurring more than three months prior to the generation of the market report; (2) include only statistics for which there are at least five providers reporting data upon which each statistic is based and for which no single provider's data represents more than 25 percent of a weighted basis of that statistic; and (3) be sufficiently aggregated such that any information disseminated in the market report would not identify specific price information by an individual provider of information. These provisions are intended to prevent the use of private information in the report that could skew the conclusions reached by the market analyst in a manner that might benefit a specific private interest and could therefore be anticompetitive.

While these requirements limit the potential for a harvester or processor to submit data for his or her benefit, these requirements also limit the usefulness of the market report because much of the data contained in the report are no longer indicative of market conditions by the time the market report is released. Furthermore, aggregation of data across five or more sources may not always be possible in the small market of crab producers, limiting the availability of data from private sources for any market report.

To address these concerns, the AOs recommended that, no later than 50 days prior to a fishery opening, the AOs representing the unaffiliated Class A IFQ and IPQ holders should be permitted to mutually agree to the timeline for release of the market report, and that these AOs could mutually agree to allow supplements to the market report at any time prior to June 30. Additionally, the AOs recommended that the market report use only publicly available information and that the AOs be provided discretion in recommending contents of the market report. The Council agreed that the current requirement for market reports to be complete at least 50 days prior to the season prevents inclusion of the most current and relevant pricing information and that the prohibition on supplements to the report prevents subsequent report modification to provide useful market information inseason or after completion of the initial report. The Council concurred with the AOs that market reports would be more timely and informative if those reports can be produced and supplemented at any time and recommended that the market report contain only publicly available information to reduce the risk that any information provided by a private source could taint the market report for anticompetitive purposes. For the purposes of this action, publicly available information means data and information published in a manner that makes them available, either for a fee or at no cost, to the public at large. The Council also recommended allowing the AOs to negotiate the timing of release of the market report and the inclusion of any supplements to enhance the timeliness, accuracy, and usefulness of the market report.

NMFS agrees with the Council that the flexibility afforded by this final rule should allow AOs to provide the most useful, timely information to participants in need of market information for price negotiations. This final rule presents some risk that majority QS and PQS holders could assert their position in the AOs to provide a market report that is not particularly beneficial to holders of relatively small amounts of QS or PQS, and who may be likely to derive the greatest benefit from the market reports. The Council and NMFS find the risk to be minor and that the benefits of the action outweigh this slight and unlikely risk.

To be consistent with the Council's recommendations, this final rule amends regulations at § 680.20(f) to remove the ability for IFQ and IPQ holders to submit proprietary data for inclusion in the market report, require that the information that the market analyst considers be publicly available, and allow AOs to mutually agree to negotiate the content and the timing for release of the market report. As with Action 1, while this amendment allows the AOs to mutually agree to a date for release of the market report, regulations require release of the market report prior to June 30. NMFS also amends regulations at § 680.20(f) to clarify that if the AOs cannot mutually agree to the contents, timing for release, or a provision addressing whether any supplements for the market report will be permitted, the market report would have to be released 50 days prior to the start of a crab fishery, and supplements to the market report would not be permitted. This provision will ensure that a market report will be prepared for each fishery if the AOs cannot reach mutual agreement. The Council recommended that existing requirements should apply if mutual agreement is not possible to ensure that all parties have some market report available for consideration during price negotiations even if the data in that report may not be as current as that available later in the year.

The arbitration program established by the CR Program requires AOs to enter into a series of contracts with harvesters, processors, market analysts, arbitrators, and, if desirable, a third-party data provider. Regulations require each of these contracts to contain several specific provisions. However, the regulations do not specify all aspects of the arbitration system. For example, regulations at § 680.20(f) and (g) do not provide specific details about how the market reports and non-binding price formula documents should be released, how specific data-quality issues within these documents should be considered and addressed, or how new information should be incorporated. Because the regulations are specific on certain requirements and silent as to other aspects, arbitration administrators ( i.e., the AO representatives, contract arbitrators, formula arbitrators, market analysts, and third party data providers) have questioned their authority to agree to provisions or develop procedures that could improve the arbitration program but that are not explicitly contained in regulation. Absent a regulation that clearly specifies this authority, it could be argued that these actions are beyond the scope of an arbitration administrator's powers.

As a result, arbitration administrators have expressed some concern that potential liability could influence decision making. For example, if an arbitrator is concerned that a participant may litigate if the arbitrator makes a certain finding, the arbitrator's independence could be compromised. Likewise, arbitration organizations might choose not to make changes in the arbitration structure that are agreed to by participants in both harvesting and processing sectors, but are not addressed by the regulations, if they fear potential lawsuits related to those changes. At the extreme, the threat of liability could make it difficult to find persons willing to perform arbitration services.

Although not specifically stated in the regulations originally developed to implement the CR Program, a review of the EIS prepared for the CR Program supports the conclusion that the Council intended for arbitration administrators to have the discretion to adapt the arbitration system to address perceived problems in program administration. Specifically, the EIS notes that administration of the arbitration system “would be undertaken primarily by industry, avoiding government involvement in the price setting process and providing greater flexibility to adopt agreed to modifications without government action.”

This flexibility was viewed by the Council and NMFS as necessary to avoid time consuming and costly processes of the Council and NMFS to amend the program through the standard regulatory process. The Council believed that broader administrative authority by the arbitration administrators would improve the efficiency of administration of the arbitration system. Although many industry participants have argued that the arbitration administrators have broad authority to adopt provisions to improve the operations of the arbitration system, absent a regulation clearly specifying this authority, it could be argued that these actions are beyond the scope of their powers.

For these reasons, the Council recommended that the regulations be modified to specifically state that arbitration administrators have the authority to establish procedures and make administrative decisions concerning the arbitration program that are in addition to those requirements specified in regulation, provided those actions are not in conflict with any of the regulatory requirements. NMFS agrees with the Council's recommendations and adds this additional clarification in a new paragraph at § 680.20(i). This clarification of authority is intended to remove any inhibitions of arbitration administrators to adopt procedures and make decisions that would improve the operation of the arbitration system.

NMFS received three unique letters during the public comment period for Amendment 30 and the proposed rule. One comment letter (Comment 1) submitted by an industry group representing participants in the BSAI crab fisheries was supportive of Amendment 30 and recommended implementation without any modification. The other two comments were submitted by AOs formed and authorized under the arbitration system regulations. These comments were substantive and are summarized below along with NMFS's responses. Public comment letters received by NMFS for this action may be obtained from http://www.regulations.gov.

Comment 2: The title of § 680.20(i) is broader than the substance of the regulation. The title states “Other Procedures, Policies, and Decisions” whereas the text of the regulation refers to “procedures.” The title and text should conform to prevent ambiguity.

Proposed regulations at § 680.20(i) state “The arbitration organizations, market analysts, arbitrators, or third party data providers are authorized * * *” The term “arbitrators” is assumed to refer to both “Contract Arbitrator(s)” and “Formula Arbitrator.” Referencing both functions rather than using the single term provides clarity and prevents ambiguity.

The proposed regulation refers to the plural “market analysts” whereas the existing regulations refer to one Market Analyst for each fishery. Use of the singular term avoids ambiguity.

The existing regulations capitalized the terms “Market Analyst, Formula Arbitrator, Contract Arbitrator(s) and Third-Party Data Provider” whereas the proposed regulation uses the lower case. Use of the capitalized terms provides consistency with the rest of the regulations.

Response: NMFS agrees that the title and text of § 680.20(i) published in the proposed rule were not in agreement. As explained in the response to Comment 3, the title and text of § 680.20(i) have been revised, so that the title and text of the paragraph are in agreement. NMFS agrees with the other grammatical and technical concerns mentioned in this comment and has modified the regulatory text based on those comments.

Comment 3: The third comment also relates to § 680.20(i) and suggests that the proposed authority granted to Arbitration Organizations, Market Analysts, Contract Arbitrators, Formula Arbitrators, and the Third Party Data Provider in the regulatory text is not broad enough and that the regulatory text should include not only the authority to adopt procedures, but also the authority to adopt policies and make administrative decisions.

Response: NMFS explained in the preamble to the proposed rule that the Council and agency intended to provide arbitration administrators with the authority to establish procedures and make administrative decisions concerning the arbitration program. NMFS agrees with the commenter that additional clarity in the regulatory text concerning the scope of authority would be beneficial and has modified the title and text of § 680.20(i) to clearly reference authority to make administrative decisions.

Proposed regulatory text at § 680.20(i) was clarified by removing authority to establish policies granted to Arbitration Organizations, Market Analysts, Contract Arbitrators, Formula Arbitrators, and the Third Party Data Provider and adding authority to make administrative decisions, consistent with the description of the action in the proposed rule preamble and with the Council's recommendations for this action. In addition, minor grammatical and technical changes were made to this paragraph to improve clarity.

NMFS published the notice of availability for Amendment 30 on July 25, 2011 (76 FR 44297), with a public comment period that closed on September 23, 2011. NMFS published the proposed rule to implement Amendment 30 on August 10, 2011 (76 FR 49423), and the public comment period closed on September 9, 2011. NMFS received three public comments during the public comment periods. As explained above, based on the three comments received, NMFS made minor, technical changes were made to one subsection of the final rule to improve clarity and consistency within the arbitration system regulations.

The Administrator, Alaska Region, NMFS, determined that Amendment 30 is necessary for the conservation and management of the fisheries managed under the CR Program and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866.

A final regulatory flexibility analysis (FRFA) was prepared for this rule. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), notes that no public comments on the IRFA were submitted, and summarizes the analyses completed to support the action. Copies of the FRFA prepared for this final rule are available from NMFS (see ADDRESSES ). The FRFA prepared for this final rule incorporates by reference an extensive RIR and FRFA prepared for the CR Program that detailed its impacts on small entities.

NMFS published the proposed rule to implement Amendment 30 on August 10, 2011 (76 FR 49423), and the public comment period closed on September 9, 2011. An IRFA was prepared and summarized in the “Classification” section of the preamble to the proposed rule. NMFS received three letters of public comment on Amendment 30 and the proposed rule. None of these comments addressed the IRFA or the economic impacts of this rule more generally.

The description of this action, its purpose, and its legal basis are described in the preamble to the final rule and are not repeated here.

The primary objective of this rule is to modify several specific areas of the arbitration system that have been identified as preventing the arbitration system from functioning as intended. The Council considered two alternatives for this action: the action alternative and the status quo. The action alternative recommends changes to four separate areas of the arbitration program. Specifically the action alternative provides the AOs with the discretion not to produce a market report and non-binding price formula if a fishery does not open, thereby reducing costs to the quota holders directly regulated; requires that a non-binding price formula be prepared at least 30 days prior to the fishery opening, thereby ensuring that relevant price information can be incorporated in the non-binding price formula; provides the AOs with the discretion to mutually agree to negotiate the timing for release of a market report and to include any supplements to help provide a timely, accurate, and more useful product; and clarifies that AOs can establish procedures and make administrative decisions concerning the arbitration program that are not explicitly specified in the regulations provided those actions are not in conflict with any requirement contained in the arbitration system regulations.

The Council determined and NMFS agrees that these actions are consistent with the Council's original intent in developing the arbitration program and that they will reduce costs to the industry by eliminating the requirement that a market report be produced for fisheries not anticipated to open and will allow for use of more timely, publicly available market information, thereby adding to the utility of the market reports. Under the status quo, some of these market reports are perceived as having limited utility and they are expensive to produce for fisheries that are not expected to open. In addition, modifications to timing of when arbitration products must be made available for the Aleutian Islands golden king crab fishery, which has a different fishery start date than other CR Program fisheries, will make the market reports more relevant for that particular fishery relative to the status quo. Clarifying the role of participants in the arbitration process will reduce ambiguity for participants in the CR Program fisheries relative to the status quo.

With regard to Action 1, alternatives that would rely on preliminary notice of intent to close a fishery from State or Federal managers, after which the arbitration organizations would not be required to contract for a market report or non-binding formula for the fishery were considered and not advanced for analysis. The need for a formal notice from managers could be misinterpreted by participants and disruptive to planning for fishing in the upcoming season. Additionally, alternatives that would create a strict time frame for applying the exemption, as well as for producing the market report and non-binding formula were considered and not advanced for analysis. These alternatives were believed to be overly restrictive and administratively burdensome, limiting the ability of the arbitration organizations to appropriately respond to changes in circumstances in providing the reports and formulas.

In evaluating Action 3, the Council alternatives that would establish strict timelines and fully defined contents for market reports were considered, but not advanced for analysis. These alternatives were believed to be overly prescriptive, limiting the ability of arbitration organizations (and participants) to agree to terms for the production of market reports that would be most useful and informative to participants. In addition, an alternative to remove the requirement for any market report was also considered, but not advanced for analysis. The market report is thought to provide beneficial baseline market information for negotiations. In addition, small, independent participants in the program are thought to derive benefit from the information in the report, which might otherwise be costly for them to gather. As a consequence, the alternative to remove the market report requirement was determined to be inconsistent with the basic program objectives for price arbitration in the crab fisheries.

An alternative that would grant immunity to arbitration administrators for their actions taken in the administration of the arbitration system was considered, but not advanced for analysis for Action 4. NMFS regulations that grant arbitral immunity would effectively restrict the ability of courts to adjudicate certain actions against specific persons. While there are clear benefits to arbitration systems from arbitral immunity, and courts have applied arbitral immunity for arbitrators and arbitration organizations, it was questioned whether the Council and NMFS are authorized to promulgate regulations that grant such immunity. The Council stated its belief that the preferred alternative (by clarifying the scope of authority of arbitration administrators) would strengthen any argument that common law or other immunity should be extended to any acts taken to administer the arbitration program (including the development of arbitration procedures).

Under each of the actions described in this amendment, holders of CVO QS and holders of PQS would be regulated in the contracts that they must establish as a condition of receiving Class A IFQ and IPQ, respectively. The holders of these shares are the entities that are directly regulated by this action. Of the estimated 221 QS holders in the fisheries, 210 are estimated to be small entities. Of the estimated 25 PQS holders, 17 are estimated to be small entities. All of the directly regulated persons would be expected to benefit from this action relative to the status quo alternative because the action is expected to reduce the costs of compliance with the arbitration system, provide more timely and useful market reports and non-binding price formulas for use in negotiations, and provide clarity concerning the administration of the arbitration system.

The analysis revealed no Federal rules that would conflict with, overlap, or be duplicated by this amendment.

The actions in this rule modify existing recordkeeping and reporting requirements, but do not impose any additional recordkeeping and reporting requirements. Specifically, the actions modify the timing, preparation, and release of information used in the market reports and non-binding price formulas and are not expected to increase the recordkeeping and reporting burden for affected participants.

This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which has been approved by the Office of Management and Budget (OMB) under OMB Control No. 0648-0516. Public reporting burden for the market report is estimated to average four hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ); email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

NMFS has posted a small entity compliance guide on the NMFS Alaska Region Web site ( http://www.fakr.noaa.gov/sustainablefisheries/crab/rat/progfaq.htm ) to satisfy the Small Business Regulatory Enforcement Fairness Act of 1996, which requires a plain language guide to assist small entities in complying with this rule. Contact NMFS to request a hard copy of the guide (see ADDRESSES ).

For the reasons set out in the preamble, NMFS amends 50 CFR part 680 as follows: