Background

This final rule implements four provisions of the 2008 Farm Bill (Pub. L. 110-246) concerning loan making activities for FSA's direct and guaranteed loan programs. On September 23, 2010, FSA published the Farm Loan Programs Loan Making Activities proposed rule in the Federal Register (75 FR 57866-57880). This final rule addresses the comments received on the proposed rule. FSA received two written comments on the proposed rule. As discussed below, one comment addressed information contained in the Summary of Economic Impacts section of the proposed rule and the Cost Benefit Analysis accompanying the proposed rule. The other comment was a general statement regarding farm subsidies that is outside the scope of this rule and therefore this rule does not address it. The commenters were members of the general public.

The amendments in this rule were discussed as part of USDA's Joint Regional Consultation Strategy facilitated from November 2010 through January 2011. During these Joint Consultation Sessions, Tribal leaders from all Federally recognized Native American Tribes and individual Tribal members were given the opportunity to comment on forthcoming USDA rules. Comments received during these sessions are also addressed in this rule. The comments received during Tribal consultation involved eligibility of equine farmers and ranchers for EM loans.

This rule also makes clarifying changes to some of the provisions in the proposed rule. These changes are not in response to public comment, but are clarifications necessary to implement the program. These changes are largely technical in nature, such as correcting internal CFR references, and correcting inconsistent terminology.

This final rule implements the Land Contract Guarantee Program authorized in the 2008 Farm Bill (7 U.S.C. 1936). FSA believes that the Land Contract Guarantee Program will provide a valuable alternative for intergenerational transfers of farm real estate to help ensure the future viability of family farms. Eligibility for the Land Contract Guarantee Program will be limited to beginning farmers and socially disadvantaged farmers. In brief, a beginning farmer is defined in FLP regulations as someone who has not operated a farm for more than 10 years, does not own real farm property where aggregate acreage exceeds 30 percent of the median farm acreage of the farms in the county where the property is located, and will substantially participate in the operation of the farm. Socially disadvantaged applicants are members of a group whose members have been subject to racial, ethnic, or gender prejudice. See definitions of beginning farmer and socially disadvantaged group in 7 CFR 761.2. Eligibility for the Land Contract Guarantee Program will be limited to family farms, which are farms in which the majority of the labor and management decisions are provided by the farm family, and guarantees may only be used for financing the purchase of a farm on a new land contract. See FSA definitions for family farm, family member, and farm in 7 CFR 761.2.

This rule implements regulations for the Land Contract Guarantee Program in 7 CFR part 763. The Land Contract Guarantee Program will be consistent with other FSA Farm Loan Program regulations with regards to general applicant eligibility criteria and most loan servicing options. Eligibility criteria have also been established for the seller in this rule. The program requires the services of either a servicing agent or an escrow agent. The program provides benefits to the seller to encourage intergenerational transfers of farm property. The Land Contract Guarantee Program gives the seller the option of choosing either a:

(1) Prompt payment guarantee of three years' amortized annual installments plus the amount of three years' real estate taxes and hazard insurance premiums, or

(2) Standard 90 percent guarantee of outstanding principal on the Land Contract.

The provisions in this rule for the Land Contract Guarantee Program are slightly different from those in the proposed rule. These minor technical changes are made to improve clarity of the regulations. There were no public or Tribal consultation comments specifically on the Land Contract Guarantee program, and no substantive changes are made from the provisions in the proposed rule. The clarifying and technical changes are included in the final rule are as described below.

• When stating the purpose of the Land Contract Program in § 763.1 in the proposed rule some of the wording was redundant and some of the terminology was inconsistent with § 761.2. The additional wording has been removed and the terminology has been corrected.

• An incorrect CFR reference was given in the seller eligibility requirements in § 763.5(a)(4) in the proposed rule with regards to compliance with federal requirements on debarment and suspension. The reference has been corrected.

• An incorrect reference was given in the buyer application requirements in § 763.5(b)(14) in the proposed rule with regards to debarment and suspension. The reference has been corrected.

• Inconsistent terminology was used in the buyer application requirements in § 763.7(b) in the proposed rule. The terminology has been changed to be consistent.

• An incorrect reference was given in the buyer application requirements in § 763.7(b)(3)(v) in the proposed rule. The reference has been corrected.

• Inconsistent terminology in § 763.10(a) in the proposed rule has been changed to be consistent.

• Redundant wording in § 763.11(a) in the proposed rule has been removed.

• Incorrect references and inconsistent terminology in § 763.19(b)(4) in the proposed rule have been corrected.

• The reference in “Appraisal method” under “Standard guarantee plan” as specified in “Delinquent servicing and collection” in § 763.20(b)(2)(ii)(B) was inadvertently omitted in the proposed rule. The reference has been added.

• The reference to the type of interest rate in “Establishment of Federal debt and Agency recovery of loss claim paid” in § 763.21(a)(1) in the proposed rule was specified incorrectly. It has been corrected.

This rule amends the experience requirements for direct loan eligibility to consider all prior farming experience of the applicant. This amendment is required by sections 5001 and 5101 of the 2008 Farm Bill, which amended sections 302 and 311 of the Consolidated Farm and Rural Development Act (CONACT, 7 U.S.C. 1922 and 1941). As specified in this rule, FSA requires that the broadened farm experience requirement be supplemented by on-the-job training or education that occurred within the last 5 years prior to the date of the application, if all prior farming occurred more than five years prior to application. FSA has considerable experience with providing supervised credit to farmers, and these broader eligibility requirements should ensure that applicants can be provided an enhanced opportunity to thrive in today's agribusiness industry.

We did not receive any public comments about the eligibility requirements in the proposed rule. The provisions for eligibility in this final rule are the same as in the proposed rule.

We did receive comments about the economic impact of the eligibility requirements, in public comments on the Cost Benefit Analysis (CBA). Essentially, the commenter stated that FSA had significantly underestimated the pool of applicants that would be made eligible for loans by these changes in requirements, because of the large pool of potential applicants who have recently graduated from agricultural colleges, or who have other relevant non-farm experience. FSA feels that our original estimates of impact are correct, as borrowers must also meet all other eligibility requirements, which have not changed. The same commenter also questioned the accuracy of the loan subsidy rate used in our analysis; we used the rate required by The Office of Management and Budget (OMB). No changes have been made based on these comments.

FSA provides emergency loans to help farmers recover from production and physical losses due to drought, flooding, other natural disasters, and certain quarantines. As required by section 5201 of the 2008 Farm Bill, which amended section 321 of the CONACT (7 U.S.C. 1961), this rule expands EM eligibility to equine farmers whose primary enterprise is to breed, raise, and sell horses. For these farmers, losses will be treated the same as losses for other types of livestock operations, with minor differences in security requirements intended to accommodate the unique nature of the equine industry.

We received two comments during the Tribal consultation on the EM provisions in the proposed rule. The comments are presented briefly below, followed by FSA responses.

Comment: FSA should loosen up the policy so that all equine operations are eligible for loans.

Response: FSA does not believe every individual involved in any aspect of the equine industry should be considered farmers and, therefore, should be eligible for FSA loans. As required by section 5201 of the 2008 Farm Bill, FSA has revised the EM loan regulations to add eligibility for individuals and entities involved as equine farmers. FSA's definition of equine farmer only includes those in the business of breeding, raising and selling horses because Conference Report language (No. 110-627) on section 5201 clearly indicates Congress' intent to exempt losses associated with horses used for racing, showing, recreation, or pleasure and associated losses of income from eligibility under the EM program. The new equine EM provisions will allow FSA to provide loan assistance to equine farmers to help minimize the effects of natural disasters on their operations. No change was made to the rule in response to this comment.

Comment: FSA should also make rodeo stock eligible for EM loan assistance.

Response: As written, this rule includes individuals and entities involved in the business of breeding, raising, and selling rodeo stock as eligible for EM loans. No change to the rule was made in response to this comment.

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

OMB designated this rule as not significant under Executive Order 12866 and, therefore, OMB has not reviewed this rule.

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. FSA has determined that this rule will not have a significant impact on a substantial number of small entities for the reasons explained below. Thus, FSA has not prepared a regulatory flexibility analysis.

All FSA direct loan borrowers and all farm entities affected by this rule are small businesses according to U.S. Small Business Administration small business size standards. There is no diversity in size of the entities affected by this rule, and the costs to comply with it are the same for all sizes of entities. The costs of compliance with this rule are expected to be minimal. No comments were received on the proposed rule regarding disparate impact on small entities. Therefore, FSA certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The environmental aspects of this final rule have been considered in a manner consistent with the provisions of the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA (7 CFR parts 799 and 1940, subpart G). The changes are non-discretionary, and, as such, no new significant circumstances or information relevant to environmental concerns have been established. In consideration of the previous analysis documented in the 2003 Programmatic Environmental Assessment (PEA) and the reasons outlined in the 2004 Finding of No Significant Impact (FONSI), FSA has concluded that this final rule will not have a significant impact on the quality of the human environment either individually or cumulatively, and, therefore, is categorically excluded and not subject to an environmental assessment or environmental impact statement in accordance with 7 CFR 1940.310(e)(3). The Final PEA and a copy of the FONSI are available at: http://www.fsa.usda.gov/FSA/webapp?area=home&subject=ecrc&topic=enl-ea.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. For reasons set forth in the Notice to 7 CFR part 3015, subpart V published in the Federal Register on June 24, 1983 (48 FR 29115), the programs and activities within this rule are excluded from the scope of Executive Order 12372.

This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” The provisions of this rule will have preemptive effect with respect to any State and local laws, regulations, or policies that conflict with such provision or which otherwise impede their full implementation. This rule will not have retroactive effect. Before any judicial action may be brought regarding the provisions of this rule, all administrative remedies in accordance with 7 CFR part 11 must be exhausted.

This rule has been reviewed under Executive Order 13132, “Federalism”. The policies contained in this rule do not have any substantial direct effect on states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the states is not required.

This rule has been reviewed for compliance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments”. This Executive Order imposes requirements on the development of regulatory policies that have Tribal implications or preempt Tribal laws. The Office of Tribal Relations has concluded that the policies contained in this rule do not have Tribal implications that preempt Tribal law. This rule was included in the Joint Regional Consultation Strategy facilitated by USDA from November 2010 through January 2011. This strategy consolidated consultation efforts of 70 rules from the 2008 Farm Bill. USDA sent senior level agency staff to seven regional locations and consulted with Tribal leadership in each region on the rules. The issues raised in Tribal consultation and the resulting changes are discussed above.

Title II of the Unfunded Mandates Reform Act of 1995 (URMA) (Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, or Tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objective of the rule. This rule contains no Federal mandates as defined by Title II of UMRA for State, local, or Tribal governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The title and number of the Federal assistance programs in Catalog of Federal Domestic Assistance to which this rule applies are:

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), FSA has described the new information collection activities in the request for public comment in the proposed rule. No comments about the information collection were received from the public. The information collection reporting and recordkeeping requirements associated with this rulemaking have been approved by OMB. OMB control numbers for this rule are 0560-0233, 0560-0236, 0560-0237, 0560-0238, and 0560-0279.

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

For the reasons discussed in the preamble, 7 CFR chapter VII is amended as follows:

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

This rulemaking is issued under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General Requirements,” Section 44702, “Issuance of Certificates,” and Section 44704, “Type Certificates, Production Certificates, and Airworthiness Certificates.” Under section 44701, the FAA is charged with prescribing regulations and minimum standards for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. Under section 44702, the Administrator may issue various certificates including type certificates, production certificates, air agency certificates, and airworthiness certificates. Under section 44704, the Administrator must issue type certificates for aircraft, aircraft engines, propellers, and specified appliances when the Administrator finds the product is properly designed and manufactured, performs properly, and meets the regulations and minimum standards prescribed under section 44701(a). This regulation is within the scope of these authorities because it will promote the safety of transport category rotorcraft metallic structures by updating the existing minimum prescribed standards, used during the type certification process, to address advances in metallic structural fatigue substantiation technology. It will also harmonize this standard with international standards for evaluating the fatigue strength of transport category rotorcraft metallic primary structural elements.

This rule for rotorcraft metallic structures revises fatigue evaluation requirements to improve safety and reduce the occurrence of catastrophic fatigue failures of metallic structures. Some of the more significant revisions are summarized below.

We have determined that the current rule is too prescriptive by directing the applicant to use specific methodologies to meet the safety objective. This approach has had the effect of lessening the significance of the basic objective of evaluating fatigue tolerance because in practice, the primary focus is on means of compliance. Thus, the entire rule has been rewritten to stress the performance objectives and deemphasize specific methodologies. We deleted all references to specific FTE methods (that is, flaw tolerant safe-life, fail-safe, and safe-life). The words “flaw tolerant” and “fail-safe” have different meanings depending on usage. Instead, we now use “fatigue tolerance” which encompasses the entire fatigue evaluation process (including crack initiation, crack growth, and final failure) with or without the influence of damage.

Industry currently uses a variety of FTE methods; all of these methods have merit and could potentially be effective, depending on the specifics of the damage being addressed. To reflect this flexibility, the amended rule requires a specific result (that is, inspection, retirement times, or equivalent means to avoid catastrophic failure), but does not specify the method to achieve this result. However, this rule does require that all methods be validated by testing, and that the Administrator must approve the methodology used for compliance.

We have determined that, in general, standards for the safest metallic structures use both inspections and retirement times together to mitigate the risk of catastrophic failure due to fatigue. Consequently, § 29.571(h) requires inspections and retirement times or approved equivalent means to be established to avoid catastrophic failure, resulting in an increased level of safety for metallic structures.

Also, we added a key element to the FTE: the identification of all threats that need to be considered to quantify damage to metallic structures. Accordingly, paragraph (e)(4) of § 29.571 requires a threat assessment for all identified PSEs.

We recognize that an inspection approach may not be possible for some kinds of damage. Thus, we include a provision that would not require inspections if effective inspections cannot be established within the limitations of geometry, inspectability, or good design practice. In this instance, other FAA approved procedures must be implemented to minimize the probability of the damage occurring or contributing to a catastrophic failure.

The following table contains an overview of the costs and benefits associated with the rule.

Rotorcraft fatigue strength reduction or failure may occur due to aging, temperature, moisture absorption, impact damage, or other factors. Since a reduction in strength of any primary structural element can lead to a catastrophic failure, it is important to evaluate fatigue tolerance.

A FTE provides a strength assessment of PSEs. It requires the applicant to evaluate the strength of various rotorcraft components including—but not limited to—rotors, rotor drive systems between the engines and the main and tail rotor hubs, controls, fuselage, fixed and movable control surfaces, engine and transmission mountings, landing gear, and their related primary attachments. A FTE of PSEs is performed to determine the appropriate required inspections and retirement times to avoid catastrophic failure during the operational life of the rotorcraft.

The current regulations do not address advances in structural fatigue substantiation technology for metallic structures (for example, advances in the safe-life methodology, and developments in crack growth methodology) required for the unique characteristics of a rotorcraft. This rule addresses those advances and amends the airworthiness standards for FTE of transport category rotorcraft metallic structures.

In the 1950s, safe-life methodology, such as described in AC 27-1B, MG 11, was used to evaluate the occurrence of fatigue conditions in rotorcraft dynamic components to establish retirement times. Historically, this methodology has provided satisfactory reliability for transport category rotorcraft. In addition, manufacturers included routine inspections in their maintenance programs to detect damage, such as scratches, corrosion, wear, or cracks. These inspections were not based on analysis or tests, but rather on experience with similar designs, engineering judgment, and good design practices. The inspections helped minimize the effect of damage when the rotorcraft was being operated.

In the 1980s, industry recognized that a higher reliability for fatigue critical structural components may be achieved by considering the strength reducing effects of damage that can occur during manufacture or operation. About that same time, rotorcraft manufacturers were introducing advanced composite materials for fatigue critical components in their rotorcraft.

The introduction of composites led manufacturers and regulatory authorities to develop a more robust safe-life methodology by considering the specific static and fatigue-strength reduction effects due to aging, temperature, moisture absorption, impact damage, and other factors. Furthermore, where clearly visible damage resulted from impact or other sources, inspection programs were developed to maintain safety.

With these developments, crack growth methodology has been used successfully for solving short-term airworthiness issues in metallic structures of rotorcraft and in the certification of civil and military transport aircraft. These advances in design, analytical methods, and other industry practices have made it feasible to address certain types of damage that could result in fatigue failure.

Consistent with these technological advancements, the regulatory requirements of § 29.571 were substantially revised by Amendment 29-28 (54 FR 43930, October 27, 1989). Although Amendment 29-28 became effective in 1989, it has rarely been used for certification of completely new rotorcraft designs because there have been only a limited number of new rotorcraft designs since it was adopted. However, despite the limited opportunity for actual application of Amendment 29-28, the rotorcraft community's general understanding of rotorcraft FTE has developed considerably. Also, there has been much discussion within the technical community about the meaning of Amendment 29-28 and the merits of its prescribed fatigue tolerance methodologies.

These methodologies, discussed in Amendment 29-28, have been the subject of a series of meetings between the FAA, the rotorcraft industry, and the Technical Oversight Group for Aging Aircraft (TOGAA). These meetings and the industry's position concerning rotorcraft fatigue and damage tolerance were documented in a White Paper, “Rotorcraft Fatigue and Damage Tolerance.”

The rotorcraft industry White Paper recommended that safe-life methods should be complemented by damage tolerance methods, but also recommended retention of the flaw tolerant safe-life method, introduced in Amendment 29-28, as an available option. However, in 1999, TOGAA recommended that current safe-life methods be complemented by damage tolerance assessment methods and that the flaw tolerant safe-life method be removed from the regulations. Because both groups recommended various methods of evaluating fatigue, the FAA decided to consider revision of the regulations.

The FAA tasked the Aviation Rulemaking Advisory Committee (ARAC) in 1991 to study the need to revise the regulations on fatigue evaluation in light of advances in technology and operational procedures and to develop regulatory recommendations.

The ARAC working group for this rule evaluated the industry White Paper, TOGAA's recommendations, and the continuing activities and results of rotorcraft damage tolerance research and development. Consequently, the working group recommended changes to the fatigue evaluation requirements for transport category rotorcraft found in 14 CFR 29.571 to address advances in technology and damage tolerance assessment methodologies. ARAC accepted those recommendations and presented them to the FAA. This rule is consistent with ARAC's recommendations.

The Industry White Paper “Rotorcraft Fatigue and Damage Tolerance,” prepared for the TOGAA, January 1999, and the TOGAA memo to the FAA, dated 15 March 1999, are located in the docket.

Before current Amendment 29-28, there was no requirement to assess the impact of damage on the fatigue performance of any rotorcraft structure. The strategy used to manage fatigue was limited to retirement of the rotorcraft part or component before the probability of crack initiation became significant, and the “safe-life” method was used to establish retirement times.

It was generally agreed, based on in-service experience, that not accounting for damage could be a serious shortcoming. Therefore, Amendment 29-28 requires the applicant to consider damage when performing fatigue evaluations unless it establishes that, for a particular structure, damage evaluation cannot be achieved within the limitations of geometry, inspectability, or good design practice. Amendment 29-28 prescribes two new methods to account for damage (“flaw tolerant safe-life” and “fail-safe”), referred to as flaw tolerant methods. The original (“safe-life”) method contained in Amendment 29-28 can be used if either of the two new methods requiring damage evaluation is not achievable within the limitations of geometry, inspectability, or good design practice.

Within the context of current § 29.571, the “flaw tolerant safe-life” method and the “fail-safe” method are considered equivalent options. The “flaw tolerant safe-life” method is based on crack initiation time in purposely “flawed” PSEs to determine retirement time. The flaw tolerant “fail-safe” method is based on a crack growth life in a purposely “flawed” PSE to determine inspection requirements.

The “safe-life” method is based on a crack initiation time in a “non-flawed” PSE to determine a retirement life. Although the “safe-life” method does not explicitly account for any damage, under current § 29.571, it is the prescribed default fatigue evaluation method if the applicant shows that neither of the flaw tolerant methods can be achieved within the limitations of geometry, inspectability, or good design practice.

One of the primary issues the working group addressed was the equivalency of the two flaw tolerant methods. While both can be used to assess damage, their equivalency, from a technical perspective, is difficult to evaluate without specific factual details. To address this concern, the working group considered two issues: establishing inspection requirements using the flaw tolerant safe-life method, and establishing retirement times using the fail-safe method. While both are theoretically possible, their effectiveness cannot be evaluated without considering the details of a specific application. Additionally, while using the flaw tolerant safe-life method for establishing an inspection interval is not within the intent of the Amendment 29-28, the fail-safe method for establishing retirement times has been accepted as meeting its intent.

The FAA has a separate rulemaking activity to address FTE of a composite structure. Because rotorcraft manufacturers increased the use of advanced composite materials for their rotorcraft structural components, we determined that a separate requirement specific to composite structures is required to address the unique characteristics and structural capability of composite structures.

The FAA published the NPRM for this rule in the Federal Register on March 12, 2010 (75 FR 11799). The comment period for the NPRM was scheduled to close on June 10, 2010. In response to a European Aviation Safety Agency (EASA) request, the FAA extended the comment period closing date to July 30, 2010 (published in the Federal Register May 5, 2010, 75 FR 24501). The FAA received 3 comments from Transport Canada.

Although the 3 comments are discussed more fully in the discussion section of this final rule, in summary, they deal with the following two subjects:

• Acceptability in rotorcraft of some PSE structures crack growth methodology allowed in fixed-wing aircraft; and

• Suggested rewording of paragraph (f) for clarification.

Transport Canada asked if some PSEs on rotorcraft, especially airframe structures, may be considered to meet the inspection requirement without being subjected to a requirement for retirement based solely on the crack growth methodology. The commenter believes that the crack growth methodology may be used for fixed-wing aircraft to determine inspection intervals (and, in the process, inspection techniques) without requiring the retirement of the PSEs.

Because of the vastly different dynamic characteristics of rotorcraft when compared to fixed-wing aircraft, we do not concur with the commenter's proposal. The rule requires both appropriate inspections and a retirement time. If an inspection cannot be established within the limits of geometry, inspectability, or good design practice, then the applicant must establish supplemental procedures in conjunction with the PSE retirement time. This rule does not allow inspections only for PSEs. The rule requires inspections and retirement times. If inspections cannot be established within certain conditions, then supplemental procedures, in conjunction with the PSE retirement time, must be established. Therefore, the FAA is adopting the rules as proposed in the NPRM.

Transport Canada suggested that paragraph (f) needs rewording to avoid possible misunderstanding or misinterpretation. It comments that:

• The term “allowable damage” has been widely used by some aircraft manufacturers to set a limit for the damages, below which there is no need for repair. The commenter suggested this sentence should be reworded to clearly indicate that the residual strength of the remaining structures is required to successfully carry limit loads.

• If the second sentence of paragraph (f) is intended to require a determination of the critical size of damage in order to determine inspection intervals, the phrase “within its operational life” should be removed. However, if it is intended to require limit loads to be applied to ensure that, within an inspection interval, the remaining structures would carry successfully the limit loads, the phrase “within its operational life” should be replaced with “within an inspection interval.”

As used in the proposal, the FAA intends the “allowable damage” to be the maximum damage at which the rotorcraft structure is capable of carrying the limit load. This “allowable damage” would be determined during the FTE. Once the rotorcraft is in service, any damage detected during an inspection interval must be repaired or the part must be replaced before further flight.

The residual strength is based on the maximum damage determined from the threat assessment for which the structure retains its limit load capability. During the damage growth, the damage may be undetected for some time between inspection intervals. Thus, the applicant must show that the structure retains its limit load capability for a determined maximum damage when evaluating the residual strength in order to avoid a catastrophic failure. To clarify this requirement, we have reworded paragraph (f).

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.

In conducting these analyses, the FAA has determined that this final rule:

(1) Has benefits that justify its costs;

(2) Is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866;

(3) Is “non-significant” as defined in DOT's Regulatory Policies and Procedures;

(4) Will have a non-significant economic impact on a substantial number of small entities;

(5) Will not have a significant effect on international trade; and

(6) Will not impose an unfunded mandate on state, local, or Tribal governments, or on the private sector by exceeding the monetary threshold identified.

These analyses are summarized below.

The estimated total cost of this final rule is about $9.0 million ($2.9 million in present value at 7% for 27 years). The estimated potential benefits of avoiding at least two of the 9 avoidable historical transport category helicopter accidents are worth about $12.9 million ($5.6 million in present value).

• Manufacturers of U.S.-registered part 29 rotorcraft, and

• Operators of part 29 rotorcraft.

• Discount rate—7%.

• Period of analysis of 27 years equals the 27 years of National Transportation Safety Board accident history. During this period manufacturers will seek new certifications for six part 29 rotorcraft and the total new production helicopters are estimated to be about 1,300.

• Value of fatality avoided—$5.8 million (Source: U.S. Department of Transportation, Treatment of the Value of a Statistical Life in Department Analyses, February 5, 2008.)

The benefits of this final rule consist of the value of lives and property saved due to avoiding accidents involving part 29 rotorcraft. Nine Transport Category rotorcraft accidents could have been avoided by this rule over the past 27-year historical period. The potential benefit of this final rule will be to avoid at least two of these accidents with a value of approximately $12.9 million ($5.6 million in present value).

We estimate the costs of this final rule to be about $9.0 million ($2.9 million in present value) over the 27-year analysis period. Manufacturers of 14 CFR part 29 rotorcraft will incur costs of $532,000 ($293,000 in present value) and operators of 14 CFR part 29 helicopters will incur costs of $8.5 million ($2.6 million in present value).

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

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the Act.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

No comments were received on the Regulatory Flexibility Determination in the NPRM.

This final rule will affect rotorcraft manufacturers and rotorcraft operators. Therefore, the effect on potential small entities is analyzed separately for helicopter manufacturers and operators.

Size standards for small entities are published by the Small Business Administration (SBA) on their Web site at http://www.sba.gov/size. The size standards used herein are from “SBA U.S. Small Business Administration, Table of Small Business Size Standards, Matched to North American Industry Classification System Codes”. The Table is effective August 22, 2008 and uses the 2007 NAICS codes.

Helicopter manufacturers are listed in the above Table under Sector 31-33—Manufacturing; Subsector 336—Transportation Equipment Manufacturing; NAICS Code 336411—Aircraft Manufacturing. The small entity size standard is 1,500 employees.

Table R1 shows the three U.S. part 29 helicopter manufacturers, Bell, Erickson Air Crane and Sikorsky. Erickson Air Crane, with 800 employees, is the only part 29 helicopter manufacturer to qualify as a small entity. In addition, Erickson Air Crane currently specializes in the production of the S-64 Sky Crane and is not expected to obtain new helicopter certifications. Therefore, it is not anticipated that this final rule will have a significant economic impact on a substantial number of part 29 helicopter manufacturers.

While there are only three part 29 helicopter manufacturers in the United States, there are many operators of part 29 helicopters. Each of these operators may provide only one, or many services. These services range from off-shore transportation, executive transportation, fire-fighting services, Emergency Medical Services (EMS), and training to maintenance, repair, and modification services.

The SBA lists small entity size standards for air transportation under Sector 44-45, Retail Trade, Subsector 481, Air Transportation. The small entity size standards are 1,500 employees for scheduled and nonscheduled charter passenger and freight transportation. This standard is $28.0 million annually if the passenger or freight air transportation is offshore marine air transportation. Finally, the small entity size standard for other—non-scheduled air transportation is $7.0 million annually.

PHI, Inc. is one of the largest helicopter operators in the world. According to PHI's 2007 Annual Report, in 2007 they employed approximately 2,254 full time employees and had annual revenues of $446.4 million.

We have been unable to obtain the number of operators and the number of employees per operator. Therefore, we take the worst case scenario and assume that all operators will meet the SBA definition of a small entity. Thus, this final rule will affect a substantial number of transport category helicopter operators.

Based on the information received from industry representatives, the cost of this final rule to a part 29 helicopter operator will be $1,600 for an inspection that must be performed every three years on each part 29 helicopter that is certificated under this final rule. This will be approximately $550 per helicopter per year. According to Bell Helicopter Product Specifications for the Bell 430 (a part 29 helicopter), January 2005, the direct operating cost of one flight hour is $671.44. Therefore, the final rule will add less than one direct hour of operating costs per year to a typical part 29 helicopter. Although this will be an increase in costs, this will not be a substantial increase in costs.

Consequently, as the FAA Administrator, I certify that this final rule will not have a significant economic impact on a substantial number of part 29 rotorcraft manufacturers or operators.

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

The FAA has assessed the potential effect of this final rule and incorporates international standards in this regulation and therefore is in compliance with the Trade Agreements Act.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any 1 year by State, local, and Tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This final rule does not contain such a mandate.

The Paperwork Reduction Act of 1995 requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose any information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

This final rule will impose the following new information collection requirements. As required by 44 U.S.C. 3507(d) of the Paperwork Reduction Act of 1995, the FAA has submitted the information collection requirements associated with this rule to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document.

Summary: This rule revises the FTE safety requirements to address advances in structural fatigue substantiation technology for metallic structures. An increased level of safety will be provided by avoiding or reducing catastrophic fatigue failures of metallic structures. These increased safety requirements will help ensure that should accidental damage occur during manufacturing or within the operational life of the rotorcraft, the remaining structure could, without failure, withstand fatigue loads that are likely to occur until the damage is detected and repaired or the part is replaced. In addition to improving the safety standards for FTE of all PSE, the amendment would lead to a harmonized international standard.

Public comments: No public comments were received on the information collection requirements discussed in the NPRM.

Use: To obtain type certification of a rotorcraft, an applicant must show that the rotorcraft complies with specific certification requirements. To show compliance, the applicant must submit substantiating data. FAA engineers or designated engineering representatives from industry will review the required data submittals to determine if the rotorcraft complies with the applicable minimum safety requirements for fatigue critical rotorcraft metallic structures and that the rotorcraft has no unsafe features in the metallic structures.

Respondents (including number of): The likely respondents to this proposed information requirement are applicants for certification of fatigue critical metallic parts for transport category helicopters. A conservative estimate of the number of applicants affected by this amendment would average 2 certification applicants every 10 years.

Frequency: The frequency of collection of this information is established as needed by the respondent to meet their certification schedule. The respondent must submit the required information prior to type certification, which can span a number of years.

Annual Burden Estimate: There will be 71.7 annual certification reporting and record keeping hours. The corresponding annual inspection hours are 197.1 (see table 12-1). The total annual certification reporting and record keeping hours are $7,167. The corresponding annual inspection costs are $11,827 (see table 13-1).

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312F and involves no extraordinary circumstances.

Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the FAA, when modifying its regulations in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. In the NPRM, the FAA requested comments on whether the proposed rule should apply differently to intrastate operations in Alaska. The agency did not receive any comments, and has determined, based on the administrative record of this rulemaking, that there is no need to make any regulatory distinctions applicable to intrastate aviation in Alaska.

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

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

An electronic copy of this rulemaking document may be obtained by using the Internet.

1. Search the Federal Docket Management System at http://www.regulations.gov;

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

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

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

Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc. ).

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

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

Discussion

We received reports of five instances where a loose IPS bolt was found on the right-hand side of the engine bypass door attachment on Quest Model Kodiak 100 airplanes. This area attaches the bypass door to the actuating shaft. In one of the five instances, the bolt was lost. Loose or missing IPS bolts could lead to an inoperable bypass door, which could result in engine inlet icing with consequent loss of engine power and forced landing.

We reviewed Quest Aircraft Company Mandatory Service Bulletin Number SB11-17, Revision: 00, dated November 1, 2011; and Quest Aircraft Company Field Service Instruction No. FSI-028, Revision 02, (undated). The service information describes procedures for inspecting and re-torquing the first IPS bolt, replacing both IPS bolts with new bolts, and installing safety wire around the new bolts.

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

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

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because this condition, if not corrected, could result in loss of engine power that may lead to a forced landing. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2011-1328 and Directorate Identifier 2011-CE-037-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 38 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

On August 26, 2011, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace for Olathe, KS, reconfiguring controlled airspace at Johnson County Executive Airport (76 FR 53361) Docket No. FAA-2011-0748. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by removing Class E airspace designated as an extension to a Class D or Class E surface area, and modifying Class E airspace extending upward from 700 feet above the surface, for standard instrument approach procedures at Johnson County Executive Airport, Olathe, KS. Decommissioning of the Johnson County VOR/DME and cancellation of the VOR approach at Johnson County Executive Airport has made reconfiguration of the airspace necessary for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Johnson County Executive Airport, Olathe, KS.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

On September 12, 2011, the FAA published in the Federal Register a notice of proposed rulemaking to amend controlled airspace at Mercury, NV (76 FR 56127). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Subsequent to publication, the FAA's Aeronautical Products office made further adjustments to the geographic coordinates listed in the regulatory text, and is included in this rulemaking.

Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface, at Mercury, Desert Rock Airport, to accommodate IFR aircraft approach procedures. The Mercury NDB has been decommissioned the NDB approach cancelled. Also, the second boundary coordinate listed in the regulatory text is adjusted to be in concert with the FAA's aeronautical database. This action is necessary for the safety and management of IFR operations. With the exception of editorial changes and the changes noted above, this rule is the same as that proposed in the NPRM.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Mercury, Desert Rock Airport, Mercury, NV.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On August 26, 2011, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace for the Centerville, IA, area. (76 FR 53358) Docket No. FAA-2011-0830. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface for the Centerville, IA area. Decommissioning of the Centerville NDB and cancellation of the NDB approach at Centerville Municipal Airport, as well as the creation of a new COPTER (RNAV) standard instrument approach procedure at Mercy Medical Center-Centerville Heliport, has made reconfiguration of the airspace necessary for the safety and management of IFR operations in the area. Also, the geographic coordinates of the airport are being updated to coincide with the FAA's aeronautical database.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace in the Centerville, IA area.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On August 31, 2011, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend controlled airspace at Emmonak, AK (76 FR 54148). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order. Except for editorial changes, this rule is the same as published in the NPRM.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface, at Emmonak, Airport, to accommodate IFR aircraft executing the two revised standard instrument approach procedures at the airport. This action is necessary for the safety and management of IFR operations. The portion of the airspace that lies further than 12 miles offshore and overlaps Norton Sound Low will be amended in a future rulemaking.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies controlled airspace at Emmonak, Airport, Emmonak, AK.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On August 12, 2011, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class D and E airspace for the new Frederick Municipal Airport, Frederick, MD (76 FR 50156) Docket No. FAA-2011-0455. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class D and E airspace designations are published in Paragraphs 5000, 6002 and 6004, respectively, of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class D airspace extending upward from the surface to 2,800 feet MSL within a 5-mile radius of Frederick Municipal Airport. Class E surface area airspace, within a 5-mile radius of the airport and Class E airspace designated as an extension to Class D surface area. Controlled airspace is necessary for the new RNAV GPS standard instrument approach procedures developed for the airport and for continued safety and management of IFR operations at Frederick Municipal Airport, Frederick, MD.

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

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Frederick Municipal Airport, Frederick, MD.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On August 26, 2011, the FAA published in the Federal Register a notice of proposed rulemaking to establish Class E airspace for Stuart, IA, creating controlled airspace at the City of Stuart Helistop (76 FR 53360) Docket No. FAA-2011-0831. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by creating Class E airspace extending upward from 700 feet above the surface for new COPTER RNAV standard instrument approach procedures at the City of Stuart Helistop, Stuart, IA. This action is necessary for the safety and management of IFR operations at the heliport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace for the City of Stuart Helistop, Stuart, IA.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 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 regarding the crane relocation until November 2, 2011. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to the relocation. 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 public during the crane relocation.

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; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The purpose of the rule is to protect the public from hazards associated with transporting the large cranes by barge from berth #3 at Columbus Street Terminal to berth #1 at Wando Welch Terminal in Charleston, South Carolina.

On Monday, December 5, 2011, two container cranes are scheduled to be transported, by barge, from berth #3 at Columbus Street Terminal to berth #1 at Wando Welch Terminal in Charleston, South Carolina. The barge is a 100 foot by 300 foot vessel. The barge will transit the Cooper and Wando Rivers. Because of the size of the two container cranes and the restricted maneuverability of the barge, a temporary moving safety zone is necessary to protect the public during relocation of the container cranes from Columbus Street Terminal to Wando Welch Terminal.

The temporary moving safety zone encompasses certain waters of the Cooper and Wando Rivers in Charleston, South Carolina. The safety zone will be enforced from 9 a.m. until 2 p.m. on December 5, 2011. Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Charleston or a designated representative. Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the Captain of the Port Charleston by telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the safety zone, including the name of the vessel transporting the cranes, by Local Notice to Mariners and Broadcast Notice to Mariners. The Coast Guard will also provide notice of the safety zone by 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, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and 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 under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation under Executive Order 12866.

The economic impact of this rule is not significant for the following reasons: (1) The safety zone will be enforced for only five hours; (2) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Port Charleston or a designated representative; and (4) the Coast Guard will provide advance notification of the safety zone 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 owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Cooper and Wando Rivers encompassed within the temporary moving safety zone from 9 a.m. until 2 p.m. on December 5, 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(g), of the Instruction. This rule involves establishing a temporary safety zone that will be enforced for a total of five hours. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

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

Pursuant to its authorities under Section 7 of the Rivers and Harbors Act of 1917 (40 Stat 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat 892; 33 U.S.C. 3) the Corps is amending the regulations in 33 CFR part 334 by revising five existing danger zone and restricted area descriptions and restrictions, removing one existing restricted area and establishing four new restricted areas. The proposed regulations were published in the December 28, 2009, issue of the Federal Register (74 FR 68552) and provided a 30-day comment period. The http://www.regulations.gov docket number is COE-2009-0056.

In response to the proposed rule, comments were provided by eight individuals. Seven of the commenters voiced concerns ranging from the establishment and use of the restricted areas to the rulemaking process. The eighth commenter said they have no objection to the proposed regulations.

Most of the concerns raised were related to the new restricted areas proposed at the Camp Pinchot and Poquito housing areas. Some of the comments noted a concern that the establishment of these restricted areas would lead to a loss of property rights, would generate navigational hazards in Garnier Bayou and Poquito Bayou and eliminate their ability to utilize the waterways. Additionally, statements were provided questioning whether or not the proposed restricted areas would really provide any security and making allegations as to the perceived underlying reason for the military's request for these restricted areas.

The regulations for restricted areas only apply to areas of navigable waters of the United States and the language in this final rule has been revised to clearly state this fact. Because the proposed restricted areas are situated in navigable waters of the United States along the waterfront of existing Eglin AFB residential areas, there will not be any loss of property rights to the adjacent landowners. Neither of these two proposed restricted areas includes the construction of any structures in navigable waters, so there is no possibility to create a navigational hazard within these waterways. A commenter suggested that the United States Coast Guard perform a risk assessment of the potential hazard to navigation which might be generated by the establishment of a restricted area in Poquito Bayou. Because the proposed restricted area does not propose any changes to the number, size, or location of any structures in the Bayou, there is no possibility of creating a hazard to navigation, therefore, a risk assessment is not necessary. The language used in the proposed rule indicated that the restrictions associated with these restricted areas would be in effect 24 hours a day, 7 days a week and that entry into the restricted areas would require the permission of the Commander, Eglin AFB. These two statements generated the concern that the public would no longer be able to utilize any portions of these waterways at anytime. The language describing each of the restricted areas clearly delineates their location within the larger waterbody and they will be shown on the National Oceanic and Atmospheric Administration navigational charts. The language addressing utilization of the restricted areas was revised to note that the public is allowed full use of the restricted area as long as there are no perceived threats to the Eglin AFB facilities. The revised language also makes it clear that at low threat levels, anyone entering the restricted areas would be subject to identification checks by U.S. Air Force patrol boats. At high threat levels, entry into the restricted areas would require the permission of the Commander, Eglin AFB. It is not the Corps role to address statements pertaining to the effectiveness of these restricted areas. The Corps has the authority to issue these regulations in response to a request by the Commander of a Department of Defense facility, after soliciting public comment and evaluating the reasonably foreseeable effects on the evaluation criteria in 33 CFR part 320, especially effects on navigation and the food fishing industry. The Commander of any military facility has the responsibility to provide appropriate protection to both the facility and the personnel utilizing the facility, and determine whether restricted area regulations are needed to help provide that protection. The waterfront security analysis performed by Eglin AFB indicated a need to provide a level of protection to these residential areas. The level of protection required was determined by the Eglin AFB security personnel.

One commenter noted that if the public is going to be allowed access to the restricted areas and if identification checks are going to be required in those areas, that should be noted in the regulation. This commenter also said that the proposed rule was unclear as to the location of the restricted area in section 334.740.

We have added language to the final rule to clarify that the public may utilize the restricted areas during periods of low threat levels and that identification checks may be conducted in the restricted area. The language describing the restricted area in section 334.740 notates the beginning point, the interim points, and the termination point, as well as the distance the restricted area extends from the shoreline, clearly delineating its location within the larger waterbody. The boundaries of the restricted area will be shown on the National Oceanic and Atmospheric Administration navigational charts.

Two commenters expressed concern with the process used to disseminate the proposed rule and to receive comments. The process for establishing and amending restricted area and danger zone regulations follows standard rulemaking procedures, including the additional procedures provided at 33 CFR 334.4. In addition to publication of the proposed rule in the December 28, 2009, issue of the Federal Register , the Jacksonville District issued a local public notice which was available on the Jacksonville District Regulatory Division web page.

In response to the comments received, we have made the following changes to the final rule:

We have modified the rule text to clarify that the danger zone and restricted area regulations apply only to navigable water of the United States, as defined by 33 CFR part 329.

Section 334.700(c)(2) was reworded to clarify that enforcement of the regulations in that section would be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition System.

Section 334.710(c) was rewritten by redesignating the proposed paragraph (c) as paragraph (c)(1) and adding paragraph (c)(2). Paragraph (c)(1) provides information pertaining to the party/ies enforcing the regulation in this section. Paragraph (c)(2) was added to clarify that enforcement of the regulations in this section would be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition System.

Section 334.720(c) was also rewritten by designating proposed paragraph (c) as paragraph (c)(1) and adding paragraph (c)(2). Paragraph (c)(1) provides information on the party/ies enforcing the regulation in this section. Paragraph (c)(2) was added to clarify that enforcement of the regulations in this section would be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition System.

In section 334.730 several changes were made. Paragraphs (a)(1) and (a)(2)(i) were modified to clarify that Harvey Lock, Louisiana is referenced because it is the “zero mile” location from which the mileage values denoted in the Gulf Intracoastal Waterway were measured. Paragraph (a)(2)(i) was also modified to correct one of the Gulf Intracoastal Waterway mileage values from 334.6 to 204.6. Paragraph (a)(2)(iii) was modified to expand a portion of the restricted area to provide protection for a fuel pier and associated mooring area at Hurlburt Field. Paragraph (b)(1) was subdivided to clarify the information pertaining to the danger zone. Paragraph (b)(1)(i) provides information on how the area is used and restrictions on entry into the area when it is in use. Paragraph (b)(1)(ii) was added to note that the danger zone and associated restrictions are in effect 24 hours a day, 7 days a week. Paragraph (b)(2)(i) was modified to remove the existing language stating that no person or vessel shall enter the area without permission of Eglin AFB or the Hurlburt Field Commander. In response to comments, the final rule clarifies that all persons, vessels and other craft are permitted to access the restricted areas defined in paragraph (a)(2) during times of low security threats and that they would be subject to identification checks by the U.S. Air Force patrol boats. With the exception of the Gulf Intracoastal Waterway, during times of high security threats anyone wishing to enter, transit, anchor or drift within the restricted areas noted in paragraph (a)(2) must have the permission of Eglin AFB or the Hurlburt Field Commander or his/her authorized representative. Paragraph (c) was rewritten by designating the proposed paragraph (c) as paragraph (c)(1) and adding paragraph (c)(2). Paragraph (c)(1) provides information on the party/ies enforcing the regulation of this section. Paragraph (c)(2) was added to clarify that enforcement of the regulations in this section would be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition System.

Section 334.740(b)(1) was modified to remove the existing language stating that no person or vessel shall enter the area without permission. In response to comments, the final rule clarifies that all persons, vessels and other craft are permitted to access the restricted area defined in paragraph (a) of this section during times of low security threats and that they would be subject to identification checks by the U.S. Air Force patrol boats. During times of high security threats anyone wishing to enter, transit, anchor or drift within the restricted area noted in paragraph (a) of this section must have the permission of the Commander, 96 Air Base Wing, Eglin AFB or his/her authorized representative. Paragraph (c)(2) was reworded to clarify that enforcement of the regulations in this section would be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition System.

For sections 334.742, 334.744 and 334.748, paragraph (b)(1) was modified to remove the proposed language stating that no person or vessel shall enter the area without permission. In response to comments, the final rule clarifies that all persons, vessels and other craft are permitted to access the restricted areas defined in paragraph (a) of each of these sections during times of low security threats and that they would be subject to identification checks by the U.S. Air Force patrol boats. During times of high security threats anyone wishing to enter, transit, anchor or drift within the restricted areas noted in paragraph (a) of each of these sections must have the permission of the Commander, 96 Air Base Wing, Eglin AFB or his/her authorized representative. Paragraph (c) was rewritten by designating the proposed paragraph (c) as paragraph (c)(1) and adding paragraph (c)(2). Paragraph (c)(1) provides information on the party/ies enforcing the regulation of this section. Paragraph (c)(2) was added to clarify that enforcement of the regulations in this section would be accomplished in accordance with the active security level as defined by the Department of Defense Force Protection Condition System.

Section 334.750 has been removed because the area it encompassed has been incorporated into section 334.740.

a. Review Under Executive Order 12866. This regulation is issued with respect to a military function of the Department of Defense and the provisions of Executive Order 12866 do not apply.

b. Review Under the Regulatory Flexibility Act. The regulation has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities ( i.e., small businesses and small governments). The Corps determined that this regulation would have practically no economic impact on the public nor would it result in any anticipated navigational hazard or interference with existing waterway traffic. This regulation will have no significant economic impact on small entities.

c. Review Under the National Environmental Policy Act. This regulation will not have a significant impact on the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment has been prepared. It may be reviewed at the district office listed at the end of the FOR FURTHER INFORMATION CONTACT section, above.

d. Unfunded Mandates Act. This regulation does not impose an enforceable duty among the private sector and, therefore, is not a Federal private sector mandate and is not subject to the requirements of Section 202 or 205 of the Unfunded Mandates Reform Act (Pub. L. 104-4, 109 Stat. 48, 2 U.S.C. 1501 et seq. ). We have also found under Section 203 of the Act, that small governments will not be significantly or uniquely affected by this regulation.

For the reasons set out in the preamble, the Corps amends 33 CFR part 334 as follows:

Congress established the Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI) program to provide financial assistance to severely injured Servicemembers who suffer a traumatic injury directly resulting in a TSGLI scheduled loss. See Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Public Law 109-13, sec. 1032, 119 Stat. 231, 257. Until now, injuries to the genitourinary (GU) system were not specifically included in the TSGLI Schedule of Losses at 38 CFR 9.20(f), although Servicemembers who sustain GU system injuries often are eligible for TSGLI payments for other losses under the Schedule incurred as a result of the same traumatic event that caused the GU loss. For example, a Servicemember who suffers GU injuries may be eligible for a TSGLI payment if hospitalized for 15 consecutive days. 38 CFR 9.20(f)(20).

A recent Department of Defense (DoD) report showed that, from 2009 to 2010, the proportion of war casualties who arrived at Landstuhl Regional Medical Center in Germany suffering from GU injuries increased from 4.8 percent to 9.1 percent. DoD also found that approximately 570 Servicemembers sustained GU injuries involving the genitalia between October 7, 2001, and May 2, 2011. Joint Theater Trauma Registry Ad Hoc Report for October 7, 2001, to May 2, 2011, Institute for Surgical Research (May 5, 2011). In addition, the United States Army Institute of Surgical Research at Fort Sam Houston found that 5 percent of Servicemembers on the Joint Theater Trauma Registry who were admitted as a result of trauma in overseas contingency operations between October 2001 and January 2008 had one or more GU injuries. Faye B. Serkin et al., Combat Urologic Trauma In US Military Overseas Contingency Operations, 69 J. Trauma Suppl. 1 S175 (2010). Recent consultation with medical experts at the National Naval Medical Center (NNMC) in Bethesda, Maryland, and Brooke Army Medical Center (BAMC) in San Antonio, Texas, where many injured Servicemembers are treated, revealed that there has been a recent increase in the number of GU injuries experienced by Servicemembers. As a result, the Secretary of Veterans Affairs has decided to add certain GU system losses to the TSGLI Schedule of Losses for which a TSGLI benefit is payable.

In the TSGLI Schedule of Losses codified at 38 CFR 9.20(f), VA is redesignating current paragraphs (19) and (20) as paragraphs (20) and (21), respectively, and adding GU system losses as the new paragraph (19). The medical experts report that, generally, GU injuries treated at NNMC and BAMC involve severe damage to the perineum consisting of complete loss of the genitalia or significant damage resulting in partial or complete loss of GU functional capacity. The NNMC and BAMC medical experts also stated that erectile dysfunction is common in male Servicemembers whom they have treated following severe GU injuries. BAMC specialists noted that the majority of the recent GU injuries treated at their facility are the result of dismounted complex blast injuries, which have increased recently because military personnel in combat zones are now conducting more walking patrols, which place them outside the protection of their armored vehicles. VA is therefore adding anatomical loss and loss of use of the penis as a scheduled loss for which $50,000 in TSGLI benefits is payable.

VA is defining “anatomical loss of the penis” in new § 9.20(e)(6)(xxi) as amputation of the glans penis or any portion of the shaft of the penis above the glans penis ( i.e., closer to the body), or damage to the glans penis or shaft of the penis that requires reconstructive surgery. Because this definition and other definitions of anatomical loss of GU organs include the word “amputation,” we are revising the definition of “amputation” in § 9.20(e)(6)(xx) to apply to genital organs as well as to limbs. VA is defining “permanent loss of use of the penis” in new § 9.20(e)(6)(xxii) to mean damage to the glans penis or shaft of the penis that results in complete loss of the ability to perform sexual intercourse that is reasonably certain to continue throughout the lifetime of the member.

VA is also adding to the Schedule of Losses in paragraph (f)(19) anatomical loss of one testicle, for which $25,000 in TSGLI benefits is payable, and anatomical loss of both testicles, for which $50,000 in TSGLI benefits is payable. The term “anatomical loss of the testicle(s)” is defined in new § 9.20(e)(6)(xxiii) as the amputation of, or damage to, one or both testicles that requires testicular salvage, reconstructive surgery, or both.

The medical experts also advised that female Servicemembers may experience anatomical loss or functional impairment of the external genitalia due to a traumatic injury. VA is therefore adding to the Schedule of Losses in § 9.20(f)(19) anatomical loss of the vulva, uterus, or vaginal canal and permanent loss of use of the vulva or vaginal canal. A TSGLI benefit of $50,000 is payable for either the anatomical loss of the vulva, uterus, or vaginal canal or for permanent loss of use of the vulva or vaginal canal. New § 9.20(e)(6)(xxv) defines “anatomical loss of the vulva, uterus, or vaginal canal” as the complete or partial amputation of the vulva, uterus, or vaginal canal or damage to the vulva, uterus, or vaginal canal that requires reconstructive surgery. VA defines “permanent loss of use of the vulva or vaginal canal” in new § 9.20(e)(6)(xxvi) as damage to the vulva or vaginal canal that results in complete loss of the ability to perform sexual intercourse that is reasonably certain to continue throughout the lifetime of the member.

VA is also adding anatomical loss of one or both ovaries to the TSGLI Schedule of Losses in paragraph (f)(19), for which TSGLI benefits of $25,000 and $50,000 are payable, respectively. The term “anatomical loss of the ovary(ies)” is defined in new § 9.20(e)(6)(xxvii) as the amputation of one or both ovaries or damage to one or both ovaries that requires ovarian salvage, reconstructive surgery, or both.

According to the NNMC and BAMC physicians, traumatic GU injuries may involve functional loss of the testicles or ovaries that requires hormonal replacement therapy in lieu of surgical removal. As a result, VA is adding permanent loss of use of both testicles to paragraph (f)(19) in the TSGLI Schedule of Losses, for which $50,000 in TSGLI benefits is payable. The term “permanent loss of use of both testicles” is defined in new § 9.20(e)(6)(xxiv) as damage to both testicles resulting in the need for hormonal replacement therapy that is medically required and reasonably certain to continue throughout the lifetime of the member. In addition, VA is adding permanent loss of use of both ovaries to paragraph (f)(19) in the TSGLI Schedule of Losses, for which $50,000 in TSGLI benefits is payable. The term “permanent loss of use of both ovaries” is defined in new § 9.20(e)(6)(xxviii) as damage to both ovaries resulting in the need for hormonal replacement therapy that is medically required and reasonably certain to continue throughout the lifetime of the member.

Finally, many of the reported GU injuries often require permanent urinary diversion ( i.e., catheterization), reconstructive surgery, or long-term rehabilitation to restore GU functional capacity, even though no anatomical loss is involved. If there is functional loss of both kidneys, hemodialysis is required, even if urinary diversion is not a factor. VA is therefore adding total and permanent loss of urinary system function to paragraph (f)(19) in the TSGLI Schedule of Losses, for which $50,000 in TSGLI benefits is payable. The term “total and permanent loss of urinary system function” is defined in new § 9.20(e)(6)(xxix) as damage to the urethra, ureter(s), both kidneys, bladder, or urethral sphincter muscle(s) that requires permanent urinary diversion and/or hemodialysis, either of which is reasonably certain to continue throughout the lifetime of the member.

GU losses may be combined with each other, but the maximum benefit for GU losses may not exceed $50,000, as stated in Note 1 of new § 9.20(f)(19). The GU losses are added as paragraph (19) of the TSGLI Schedule of Losses and thus can be combined with other TSGLI losses listed in § 9.20(f)(1) through (18), as explained in Note 2 of new § 9.20(f)(19). The total TSGLI payment received for all TSGLI losses, including those in combination with the new GU losses, that result from a single traumatic event may not exceed $100,000, as stated in Note 2 of § 9.20(f)(19). See 38 CFR 9.20(e)(5)(i). As a result of this amendment, the references to “(18)” in the first two paragraphs of § 9.20(f) are replaced with “(19),” and the reference to “(f)(19) through (20)” is replaced with “(f)(20) through (21)”.

When Congress created the TSGLI program in 2005, it authorized TSGLI payments for losses resulting from traumatic injuries sustained between October 7, 2001, and December 1, 2005, if the qualifying loss was a direct result of injuries incurred in Operation Enduring Freedom or Operation Iraqi Freedom. Public Law 109-13, sec. 1032(c)(1), 119 Stat. at 259. In 2006, Congress limited such retroactive application to injuries incurred in the theater of operations for Operation Enduring Freedom or Operation Iraqi Freedom. Veterans' Housing Opportunity and Benefits Improvement Act of 2006, Public Law 109-233, sec. 501(b), 120 Stat. 397, 414. In 2010, Congress eliminated the requirement that a loss directly resulting from traumatic injury had to be incurred in such theaters of operations or in such operations in order to qualify for retroactive benefits. Veterans' Benefits Act of 2010, Public Law 111-275, sec. 408, 124 Stat. 2864, 2881. We therefore make this rule applicable to GU losses resulting from a traumatic injury incurred on or after October 7, 2001, regardless of whether the traumatic event occurred in those operations.

In accordance with 5 U.S.C. 553(b)(3)(B), the Secretary of Veterans Affairs finds that there is good cause to dispense with the opportunity for prior notice and public comment with respect to this rule, which modifies the TSGLI program in a manner advantageous to Servicemembers. The Secretary finds that it is impracticable to delay this regulation for the purpose of soliciting public comments because Servicemembers who suffer these GU injuries and their families need the TSGLI payment as soon as possible to reduce the financial burden related to the Servicemembers' injuries. As the number of GU injuries continues to increase due to more ground troop patrols in high risk areas, the number of potential Servicemembers that may need assistance under this rule will also increase. For this reason, the Secretary of Veterans Affairs is issuing this rule as an interim final rule. The Secretary of Veterans Affairs will consider and address comments that are received within 60 days of the date this interim final rule is published in the Federal Register. For the same reasons, the Secretary of Veterans Affairs finds there is good cause for dispensing with a delayed effective date for this rule.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, or Tribal governments or on the private sector.

This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action” requiring review by the Office of Management and Budget (OMB) as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action and has determined that it is not a significant regulatory action under Executive Order 12866.

The Secretary of Veterans Affairs hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. This interim final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance Program number and title for this regulation is 64.103, Life Insurance for Veterans.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on October 27, 2011, for publication.

For the reasons stated in the preamble, the Department of Veterans Affairs is amending 38 CFR part 9 as follows:

On October 6, 2011, the Postal Service published a Federal Register proposed rule (76 FR 62000-62002) inviting comments on revisions to the standards for Express Mail to modify the policy for filing claims for domestic Express Mail postage and to change the Express Mail “waiver of signature” standard for domestic items. The Postal Service received several comments in response to this proposed rule that are summarized later in this notice.

The Postal Service is revising the DMM to align the refund policy for domestic Express Mail with the industry standard for overnight products by requiring all claims for postage refunds to be filed within 30 days of the date of mailing instead of the current filing timeline of 90 days.

Additionally, in conjunction with the implementation of the January 2012 redesigned Express Mail Label 11-B and Label 11-F, Express Mail Post Office to Addressee, the Postal Service is modifying both labels, by eliminating the “waiver of signature” check box. A customer sending an Express Mail item, and requiring an addressee's signature, must select the new “signature required” box on the new Express Mail label. If the box is not selected, the Postal Service will not obtain a signature from the addressee upon delivery of Express Mail Next Day Delivery and Express Mail Second Day Delivery items. Instead, the carrier will scan the barcode and leave the item in the customer's mail receptacle or other secure location to document delivery.

Express Mail Hold For Pickup service always requires the signature of the addressee or addressee's agent. Therefore, the Express Mail Label 11-HFPU, Express Mail Hold For Pickup, will not be modified to reflect the new “signature required” option.

Five comments were received regarding the proposed rule, addressing multiple issues.

Three commenters expressed concern over the change to modify the policy for filing claims for domestic Express Mail postage from 90 days to 30 days. Two of the commenters voiced concern that 30 days is too short for commercial mailers and mailing agents. A 30-day limit on the sender's request for a refund is longer than the current industry standard. Data shows refund requests received outside of the 30-day limit are currently the exception. The change to a 30-day submission limit encompasses only the mailer request for refunds due to a failure to deliver Express Mail shipments on time. The current process for validating account charges and identifying corrections or adjustments that may be necessary will not change.

One commenter provided an interpretation of how the new Express Mail Label 11-B and 11-F, dated January 2012, and the labels printed prior to January 2012 will be used. The interpretation was correct. Effective January 22, 2012, when a customer uses a new Label 11-B or Label 11-F, a signature will only be obtained if the “signature required” check box is marked. When a customer uses a Label 11-B or Label 11-F printed prior to January 2012, a signature will be required unless the “waiver of signature” check box is marked.

The same commenter had three additional questions:

1. What is the recourse when a signature is requested and is not obtained or the piece is not delivered? Customers are encouraged to apply for the postage refund when a service expected is not rendered. Under these circumstances, a postage refund will continue to be considered on a case-by-case basis.

2. Will scanning on delivery still be required? The scan procedures will not change. A delivered scan event is required to be entered even when the addressee signature is not required, as it is today when the signature is waived. When the delivering employee indicates that a signature is not required (waived), there is no scan of the PS Form 3849 and the customer will only receive the delivery date when accessing the delivery record on USPS.com.

3. How will the occasional Express Mail user be made aware of the requirement that articles with additional insurance must be signed for? If the signature box is not checked, how will the employee delivering the mailpiece determine insurance was chosen? Both the current label and the new label clearly indicate that a signature is required when additional insurance is purchased. The postal software automatically requires a signature if additional insurance is purchased today. A retail associate will also be required to advise the customer that a signature is required when additional insurance is purchased during a retail window transaction. Because insurance claims are not handled by delivery employees, they will not need to determine if additional insurance has been purchased.

Two commenters supported the proposed change to the Express Mail postage refund policy and one of the commenters also supported the change to eliminate the waiver of signature option and require a customer to select the new “signature required” box on the Express Mail label.

One commenter also recommended changes to the 5-day holding period for unclaimed Express Mail pieces. The Postal Service has determined that this suggestion is outside the scope of this final rule, but may take the suggestion under consideration for a future rule.

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

Accordingly, 39 CFR Part 111 is amended as follows:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On July 18, 1997 (62 FR 36852), EPA established a health-based PM 2.5 NAAQS at 15.0 micrograms per cubic meter (μg/m 3 ) based on a 3-year average of annual mean PM 2.5 concentrations (hereafter referred to as “the annual PM 2.5 NAAQS” or “the annual standard”). At that time, EPA also established a 24-hour standard of 65 μg/m 3 (the “1997 24-hour standard”). See, 40 CFR 50.7. On January 5, 2005 (70 FR 944), EPA published its air quality designations and classifications for the 1997 p.m. 2.5 NAAQS based upon air quality monitoring data from those monitors for calendar years 2001-2003. These designations became effective on April 5, 2005. The Parkersburg-Marietta, WV-OH and Wheeling, WV-OH nonattainment areas were designated nonattainment for the 1997 p.m. 2.5 NAAQS during this designations process. See, 40 CFR 81.349 (West Virginia) and 40 CFR 81.336 (Ohio). The Parkersburg-Marietta, WV-OH nonattainment area consists of Wood County, WV, the Grant Tax District of Pleasants County, WV, and Washington County, OH. The Wheeling, WV-OH nonattainment area consists of Marshall County, WV, Ohio County, WV, and Belmont County, OH.

EPA previously issued determinations of attainment of the 1997 annual PM 2.5 NAAQS for each of these Areas pursuant to 40 CFR 51.1004(c). These determinations were published in the Federal Register on November 20, 2009 (74 FR 60199) and remain in effect.

Under CAA section 179(c), EPA is required to make a determination that a nonattainment area has attained by its applicable attainment date, and publish that determination in the Federal Register . The determination of attainment is not equivalent to a redesignation, and the state must still meet the statutory requirements for redesignation in order for the Areas to be redesignated to attainment.

Complete, quality-assured, and certified PM 2.5 air quality monitoring data recorded in the EPA Air Quality System (AQS) database for 2007-2009, show that the Parkersburg-Marietta, WV-OH and Wheeling, WV-OH nonattainment areas attained the 1997 annual PM 2.5 NAAQS by their applicable attainment date.

On July 21, 2011 (76 FR 43634), EPA published a notice of proposed rulemaking (NPR) for the States of West Virginia and Ohio. The NPR proposed to determine that the Parkersburg-Marietta, WV-OH PM 2.5 nonattainment area and the Wheeling, WV-OH PM 2.5 nonattainment area have attained the 1997 annual PM 2.5 NAAQS by the applicable attainment date of April 5, 2010. The proposal is based upon complete, quality-assured, and certified ambient air monitoring data for the 2007-2009 monitoring period and EPA's determinations are in accordance with EPA's PM 2.5 Implementation Rule of April 25, 2007 (72 FR 20664). One comment was submitted on the July 21, 2011 NPR (76 FR 43634). A summary of the comment and EPA's response is provided in section III of this document.

EPA has reviewed the ambient air monitoring data for PM 2.5 , consistent with the requirements contained in 40 CFR part 50 and recorded in the data in the EPA AQS database for the Parkersburg-Marietta, WV-OH and Wheeling, WV-OH nonattainment areas for the monitoring period from 2007-2009. On the basis of that review, EPA is determining that the Areas attained the 1997 annual PM 2.5 NAAQS by the applicable April 5, 2010, attainment date.

Under EPA regulations at 40 CFR 50.7, the annual primary and secondary PM 2.5 standards are met when the annual arithmetic mean concentrations, as determined in accordance with 40 CFR part 50, appendix N, is less than or equal to 15.0 μg/m 3 , at all relevant monitoring sites. The values calculated in accordance with 40 CFR part 50, appendix N, are referred to as design values, and these values are used to determine if an area is attaining the PM 2.5 NAAQS. According to the PM 2.5 implementation rule, the attainment date for these Areas is April 5, 2010, and the monitoring data from 2007-2009 is used to determine if the Areas attained by April 5, 2010.

Tables 1 shows the PM 2.5 design values for each monitor in the Parkersburg-Marietta, WV-OH nonattainment area and the Wheeling, WV-OH nonattainment area, respectively, for the years 2007-2009. All 2007-2009 design values are below 15.0 μg/m 3 , and all monitors meet the data completeness requirements. Therefore, the Parkersburg-Marietta, WV-OH and Wheeling, WV-OH nonattainment areas attained the 1997 annual PM 2.5 NAAQS by their attainment date.

Comment: A commenter expressed concern about implementing a new, revised standard for ozone and stated that the current 1997 8-hour ozone standard should be left in place.

Response: As stated in the notice of proposed rulemaking, this rulemaking concerns EPA's determinations that the Parkersburg-Marietta, WV-OH and Wheeling, WV-OH nonattainment areas have attained the 1997 annual PM 2.5 NAAQS. These determinations concern only whether these areas meet the 1997 annual PM 2.5 standard, and do not relate to any other NAAQS. The commenter expressed an opinion as to whether the current NAAQS for ozone (the 1997 Ozone NAAQS) should be revised. Because the comment does not relate to EPA's proposed determination that the Parkersburg-Marietta, WV-OH and Wheeling, WV-OH nonattainment areas have attained the 1997 annual PM 2.5 NAAQS, it is not relevant to, and is beyond the scope of this rulemaking action.

EPA is finalizing the determinations that the Parkersburg-Marietta, WV-OH and Wheeling, WV-OH nonattainment areas have attained the 1997 annual PM 2.5 standard by the applicable attainment date (April 5, 2010). These actions meet the requirement pursuant to section 179(c) of the CAA for EPA to make a determination as to whether the Areas attained the standard by the applicable attainment date of April 5, 2010.

Finalizing these actions does not constitute a redesignation of the Areas to attainment of the 1997 annual PM 2.5 NAAQS under section 107(d)(3) of the CAA. Further, finalizing these determinations does not involve approving maintenance plans for the Areas as required under section 175A of the CAA, nor does it find that the Areas have met all other requirements for redesignation. The designation status of the Parkersburg-Marietta, WV-OH, and Wheeling, WV-OH areas remains nonattainment for the 1997 annual PM 2.5 NAAQS until such time as EPA determines that the Areas meet the CAA requirements for redesignation to attainment and EPA acts to redesignate the Parkersburg-Marietta, WV-OH, and Wheeling, WV-OH areas.

These actions merely make attainment determinations based on air quality data and does not impose any additional requirements. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 31, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to the determinations of attainment for the Parkersburg-Marietta, WV-OH and the Wheeling, WV-OH PM 2.5 nonattainment areas may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

FMCSA —On December 21, 2010, FMCSA published a notice of proposed rulemaking (NPRM) in the Federal Register (75 FR 80014), proposing to restrict the use of hand-held mobile telephones by interstate CMV drivers. FMCSA received nearly 300 public comments to the NPRM. The Agency made changes to the proposed rule in response to these comments, which are described below in part IV, Discussion of the Rule.

PHMSA —On April 29, 2011, PHMSA published a NPRM in the Federal Register (76 FR 23923), proposing to restrict the use of hand-held mobile telephones by drivers of CMVs containing a quantity of hazardous materials requiring placarding under part 172 of 49 CFR or any quantity of a select agent or toxin listed in 42 CFR part 73. PHMSA received six public comments, which are also described below in part IV, Discussion of the Rule.

Driver distraction can be defined as the voluntary or involuntary diversion of attention from primary driving tasks due to an object, event, or person. Researchers classify distraction into several categories: visual (taking one's eyes off the road), manual (taking one's hands off the wheel), cognitive (thinking about something other than the road/driving), and auditory (listening to the radio or someone talking). Research shows that using a hand-held mobile telephone while driving may pose a higher safety risk than other activities ( e.g., eating or adjusting an instrument) because it involves all four types of driver distraction. Both reaching for and dialing a hand-held mobile telephone are manual distractions and require visual distraction to complete the task; therefore, the driver may not be capable of safely operating the vehicle.

Using a hand-held mobile telephone may reduce a driver's situational awareness, decision making, or performance; and it may result in a crash, near-crash, unintended lane departure by the driver, or other unsafe driving action. Indeed, research indicates that reaching for and dialing hand-held mobile telephones are sources of driver distraction that pose a specific safety risk. To address the risk associated with these activities, the Agencies restrict CMV drivers' use of hand-held mobile telephones, which includes “using at least one hand to hold a mobile telephone to conduct a voice communication.” As discussed below, while operating a CMV, the driver may only use a compliant mobile telephone, such as a hands free mobile phone, to conduct a voice communication.

In an effort to understand and mitigate crashes associated with driver distraction, the U.S. Department of Transportation (DOT) conducted research concerning behavioral and vehicle safety countermeasures to driver distraction. Data from studies  1 indicate that both reaching for and dialing a mobile telephone increase the odds of a CMV driver's involvement in a safety- critical event, such as a crash, near crash, or unintended lane departure. 2 The odds of being involved in a safety-critical event are three times greater when the driver is reaching for an object than when the driver is not reaching for an object. The odds of being involved in a safety-critical event are six times greater while the driver is dialing a cell phone than when the driver is not dialing a cell phone. These increases in risk are primarily attributable to the driver's eyes being off the forward roadway. Additionally, these activities have high population attributable risk (PAR) percentages. PAR percent is the percent of the drivers involved in a safety critical event that would not occur if performing the task while driving were eliminated. Tasks that are performed more frequently have a higher PAR percentage. The highest PAR percentage in the study was 7.6 percent—reaching for an object, including cell phones. Dialing a cell phone had a PAR of 2.5. Because of the data on distractions associated with the use of hand-held mobile telephones while driving  3 ( i.e. reaching for and dialing a mobile telephone), FMCSA and PHMSA believe it is in the best interest of public safety to restrict a CMV driver's use of such devices.

The National Transportation Safety Board (NTSB) determined that one probable cause of a November 2004 bus crash was the use of a hands-free cell phone. This crash was the impetus for an NTSB investigation (NTSB/HAR-06/04 PB2007-916201) and a subsequent recommendation to FMCSA that the Agency prohibit cell phone use by all passenger-carrying CMVs. 4 FMCSA also received recommendations on cell phone use from its Motor Carrier Safety Advisory Committee (MCSAC). One of MCSAC's recommendations for the National Agenda for Motor Carrier Safety was that FMCSA initiate a rulemaking to ban a driver's use of hand-held and hands-free mobile telephones while operating a CMV.

It is not clear, however, if simply talking on a mobile telephone presents a significant risk while driving. For example, Olson, et al. (2009) detailed the risks of reaching for and dialing a phone while driving and found that “talking or listening to a hands-free phone” and “talking or listening to a hand-held phone” were relatively low-risk activities that involved only brief periods of eyes off the forward roadway. FMCSA and PHMSA determine that it is the action of taking one's eyes off the forward roadway to reach for and dial a hand-held mobile telephone  5 (two high PAR activities) that has the greatest risk. The Agencies address those risky behaviors by restricting holding mobile telephones while driving a CMV.

While no State has completely banned mobile telephone use, some States have gone further than this rule for certain categories of drivers. For example, 19 States and the District of Columbia prohibit the use of all mobile telephones while driving a school bus. Additionally, nine States and the District of Columbia have traffic laws prohibiting all motor vehicle drivers from using a hand-held mobile telephone while driving. Transit bus and motorcoach drivers are the focus of stricter mobile telephone rules in some States and local jurisdictions. 6 The restriction of hand-held mobile telephone use by all CMV drivers is based on available data and in line with existing regulations that hold CMV drivers to higher standards. 7

The information and feedback DOT received during its first Distracted Driving Summit, held September 30-October 1, 2009, in Washington, DC, highlighted the need for action and demonstrated widespread support for a ban against texting and mobile telephone use while driving. Summit participants, who included industry representatives, safety experts, elected officials, and law enforcement, gathered to address the safety risk posed by this growing problem across all modes of surface transportation. U.S. Transportation Secretary Ray LaHood stated: “Keeping Americans safe is without question the Federal government's highest priority.” The Secretary pledged to work with Congress to ensure that the issue of distracted driving would be appropriately addressed. 8 At the conclusion of the Summit, the Secretary announced a series of concrete actions that the Obama Administration and DOT would be taking to address distracted driving.

The authority for this rule derives from the Motor Carrier Safety Act of 1984 (1984 Act), 49 U.S.C. chapter 311, and the Commercial Motor Vehicle Safety Act of 1986 (1986 Act), 49 U.S.C. chapter 313. The 1984 Act (Pub. L. 98-554, Title II, 98 Stat. 2832, Oct. 30, 1984) provides authority to regulate the safety of operations of CMV drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation (Secretary) to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles.” Although this authority is very broad, the 1984 Act also includes specific requirements in 49 U.S.C. 31136(a):

This rule is based primarily on 49 U.S.C. 31136(a)(1), which requires regulations that ensure that CMVs are operated safely, and secondarily on section 31136(a)(2), to the extent that drivers' use of hand-held mobile telephones impacts their ability to operate CMVs safely. It does not address the physical condition of drivers (49 U.S.C. 31136(a)(3)), nor does it impact any physical effects caused by operating CMVs (49 U.S.C. 31136(a)(4)).

The relevant provisions of the FMCSRs (49 CFR subtitle B, chapter III, subchapter B) apply to CMV drivers and employers operating CMVs included in the statutory authority of the 1984 Act. The 1984 Act defines a CMV as a self-propelled or towed vehicle used on the highways to transport persons or property in interstate commerce; and that either: (1) Has a gross vehicle weight/gross vehicle weight rating of 10,001 pounds or greater; (2) is designed or used to transport more than 8 passengers (including the driver) for compensation; (3) is designed or used to transport more than 15 passengers, not for compensation; or (4) is transporting any quantity of hazardous materials requiring placards to be displayed on the vehicle (49 U.S.C. 31132(1)). All drivers operating CMVs are subject to the FMCSRs, except those who are employed by Federal, State, or local governments (49 U.S.C. 31132(2)).

In addition to the statutory exemption for government employees, there are several regulatory exemptions in the FMCSRs that are authorized under the 1984 Act, including, among others, one for school bus operations and one for CMVs designed or used to transport between 9 and 15 passengers (including the driver) not for direct compensation (49 CFR 390.3(f)(1) and (6)). The school bus operations exemption only applies to interstate transportation of school children and/or school personnel between home and school. This particular exemption is not based on any statutory provisions, but is instead a discretionary rule promulgated by the Agency. Therefore, FMCSA has authority to modify the exemption. Modification of the school bus operations exemption requires the Agency to find that such action “is necessary for public safety, considering all laws of the United States and States applicable to school buses” (former 49 U.S.C. 31136(e)(1)). 9 FMCSA also has authority to modify the non-statutory exemption for small, passenger-carrying vehicles not for direct compensation, but is not required to comply with former 49 U.S.C. 31136(e) in modifying that exemption. 10 FMCSA applies restrictions on hand-held mobile telephone use to both school bus operations by private operators in interstate commerce and small passenger-carrying vehicles not for direct compensation, although they will continue to be exempt from the rest of the FMCSRs. Other than transportation covered by statutory exemptions, FMCSA has authority to restrict the use of mobile telephones by drivers operating CMVs.

Any violation of this restriction may result in a civil penalty imposed on drivers in an amount up to $2,750; a civil penalty may be imposed on employers, who fail to require their drivers to comply with FMCSRs, in an amount up to $11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and Appendix B, paragraphs (a)(3) and (4)). Disqualification of a CMV driver for violations of the Act and its regulations is also within the scope of the Agency's authority under the 1984 Act. Such disqualifications are specified by regulation for other violations (49 CFR 391.15), and were recently adopted by the Agency in its final rule prohibiting texting by CMV drivers while operating in interstate commerce (75 FR 59118, Sept. 27, 2010; 49 CFR 392.80). In summary, both a restriction on the use of hand-held mobile telephones and associated sanctions, including civil penalties and disqualifications, are authorized by statute and regulation for operators of CMVs, as defined above, in interstate commerce, with limited exceptions. But before prescribing any regulations under the 1984 Act, FMCSA must consider their costs and benefits (49 U.S.C. 31136(c)(2)(A)). See Part V, Regulatory Analysis.

The 1986 Act (Title XII of Pub. L. 99-570, 100 Stat. 3207-170, Oct. 27, 1986), which authorized creation of the CDL program, is the primary basis for licensing programs for certain large CMVs. There are several key distinctions between the authority conferred under the 1984 Act and that under the 1986 Act. First, the CMV for which a CDL is required is defined under the 1986 Act, in part, as a motor vehicle operating “in commerce,” a term separately defined to cover broadly both interstate commerce and operations that “affect” interstate commerce (49 U.S.C. 31301(2) and (4)). Also under the 1986 Act, a CMV means a motor vehicle used in commerce to transport passengers or property that: (1) Has a gross vehicle weight/gross vehicle weight rating of 26,001 pounds or greater; (2) is designed to transport 16 or more passengers including the driver; or (3) is used to transport certain quantities of “hazardous materials,” as defined in 49 CFR 383.5 (49 U.S.C. 31301(4)). In addition, a provision in the FMCSRs implementing the 1986 Act recognizes that all school bus drivers (whether government employees or not) and other government employees operating vehicles requiring a CDL ( i.e., vehicles above 26,000 pounds, in most States, or designed to transport 16 or more passengers) are subject to the CDL standards set forth in 49 CFR 383.3(b).

There are several statutory and regulatory exceptions from the CDL requirements, which include the following individuals: military service members who operate a CMV for military purposes (a mandatory exemption for the States to follow) (49 CFR 383.3(c)); certain farmers; firefighters; CMV drivers employed by a unit of local government for the purpose of snow/ice removal; and persons operating a CMV for emergency response activities (all of which are permissive exemptions for the States to implement at their discretion) (49 CFR 383.3(d)). States may also issue certain restricted CDLs to other categories of drivers under 49 CFR 383.3(e)-(g). Drivers with restricted CDLs based on State programs may still be covered by a disqualification under the 1986 Act arising from the use of hand-held mobile telephones while operating CMVs.

The 1986 Act does not expressly authorize the Agency to adopt regulations governing the safety of CMVs operated by drivers required to obtain a CDL. Most of these drivers (those involved in interstate trade, traffic, or transportation) are subject to safety regulations under the 1984 Act, as described above. The 1986 Act, however, does authorize disqualification of CDL drivers by the Secretary. It contains specific authority to disqualify CDL drivers for various types of offenses, whether those offenses occur in interstate or intrastate commerce. This authority exists even if drivers are operating a CMV illegally because they did not obtain a CDL.

In general, the 1986 Act explicitly identifies several “serious traffic violations” as grounds for disqualification (49 U.S.C. 31301(12) and 31310). In addition to the specifically enumerated “serious traffic violations,” the 1986 Act provides related authority that allows FMCSA to designate additional serious traffic violations by rulemaking if the underlying offense is based on the CDL driver committing a violation of a “State or local law on motor vehicle traffic control” (49 U.S.C. 31301(12)(G)). The FMCSRs state, however, that unless and until a CDL driver is convicted of the requisite number of specified offenses within a certain time frame (described below), the required disqualification may not be applied (49 CFR 383.5 (defining “conviction” and “serious traffic violation”) and 383.51(c)).

Under the statute, a driver who commits two serious traffic violations in a 3-year period while operating a CMV must be disqualified from operating a CMV that requires a CDL for at least 60 days (49 U.S.C. 31310(e)(1)). A driver who commits three or more serious traffic violations in a 3-year period while operating a CMV must be disqualified from operating a CMV that requires a CDL for at least 120 days (49 U.S.C. 31310(e)(2)). Because use of hand-held mobile telephones results in distracted driving and increases the risk of CMV crashes, fatalities, and injuries, FMCSA is now requiring that violations by a CDL driver of a State or local law or ordinance on motor vehicle traffic control that restricts the use of such mobile telephones while driving CMVs should result in a disqualification under this provision.

FMCSA is authorized to carry out these statutory provisions by delegation from the Secretary as provided in 49 CFR 1.73(e) and (g).

PHMSA's Office of Hazardous Materials Safety is the Federal safety authority for the transportation of hazardous materials by air, rail, highway, and water. Under the Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq. ), the Secretary of Transportation is charged with protecting the nation against the risks to life, property, and the environment that are inherent in the commercial transportation of hazardous materials. The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) are promulgated under the mandate in Section 5103(b) of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq. ) that the Secretary of Transportation “prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.” Section 5103(b)(1)(B) provides that the HMR “shall govern safety aspects, including security, of the transportation of hazardous material the Secretary considers appropriate.” As such, PHMSA strives to reduce the risks inherent to the transportation of hazardous materials in both intrastate and interstate commerce. This final rule is being issued under the authority in 49 CFR part 106.

FMCSA received approximately 300 comments in response to the NPRM (75 FR 80014, Dec. 21, 2010). PHMSA received 6 comments in response to its NPRM (76 FR 23923, April 29, 2011). The commenters included associations representing trucking companies, motorcoach companies, school bus operations, public transportation, highway safety, utility providers, waste haulers, concrete manufacturers, and food suppliers. In addition, the agencies received comments from the legal and law enforcement communities, as well as representatives of State governments and driver unions. Commenters from the general public included motorists concerned about their safety when driving near CMV drivers who are using mobile telephones.

Overall, most commenters supported the proposal to restrict hand-held mobile telephone use because of the potential safety benefits for all vehicle and pedestrian traffic sharing the highway with CMVs. A few commenters stated that the proposal did not go far enough and that all mobile telephone use by CMV drivers should be prohibited. A few commenters opposed any restriction on the use of mobile phones. Below we summarize the comments submitted to FMCSA's NPRM at Docket FMSCA-2010-0096, followed by a summary of the comments submitted to PHMSA's NPRM at Docket PHMSA-2010-0227.

Some commenters believed that restricting hand-held mobile telephone use by drivers operating CMVs in interstate commerce would impede business and require many more stops for drivers.

FMCSA Response. Because drivers have other options available that do not require pulling over and stopping, FMCSA disagrees that this rule would impede business. Stops can be avoided by using technological solutions such as a hands-free mobile telephone with a speaker phone function or a wired or wireless earphone. Most mobile telephones have a speaker phone function and one-touch dialing and thus would be compliant with this rule. Additionally, the Agency estimated the minimum cost of upgrading from a non-compliant mobile telephone to a compliant one to be as low as $29.99. 11 Therefore, abiding by the final rule will not create a burden on, or hardship for, CMV drivers.

A few commenters, including First Group America  12 and the Advocates for Highway and Auto Safety (Advocates), thought the Agency should ban both hand-held and hands-free mobile telephone use.

FMCSA Response. The Agency does not believe sufficient data exist to justify a ban of both hand-held and hands-free use of mobile telephones by drivers operating CMVs in interstate commerce. Based on available studies, FMCSA proposed restricting only hand-held mobile telephone use by CMV drivers. While some driving simulator-based studies found conversation to be risky, the Olson, et al. (2009) and Hickman, et al. (2010) studies found that “talking or listening to a hands-free phone” and “talking or listening to a hand-held phone” were relatively low-risk activities and had only brief periods when the drivers' eyes were off the forward roadway. It is not clear from available studies if simply talking on a mobile telephone while driving presents a significant risk. The use of a cell phone, however, involves a variety of sub-tasks, some increasing and some decreasing the odds of involvement in a safety-critical event. The Hickman, et al. (2010) study showed that reaching for a cell phone while driving increased these odds by 3.7 times. Dialing a cell phone while driving increased the odds by 3.5 times. Reaching for a headset/earpiece while driving increased the odds by 3.4 times. Talking or listening on a hands-free cell phone while driving decreased the odds by .7 times ( i.e., protective effect). Talking/listening on a hand-held cell phone (odds ratios = .9) had a non-significant odds ratio ( i.e., no increase or decrease in risk).

Although talking on the cell phone did not show an increased risk, a driver must take several risk-increasing steps, such as reaching for and dialing the cell phone, in order to use the electronic device for conversation. Based on these studies, FMCSA determined that it is the action of taking one's eyes off the forward roadway to reach for and dial the mobile telephone that is the highly risky activity. Therefore, because the reaching and dialing tasks are necessary to use a hand-held mobile telephone, the Agency will only restrict hand-held mobile telephone use by CMV drivers while operating in interstate commerce in this final rule. Reaching for and dialing a mobile telephone are both visual and manual distractions and reduce a driver's situational awareness; adversely impact decision making or driving performance; and result in an increased risk of a crash, near-crash, unintended lane departure by the driver, or other unsafe driving action. 13 To address this risk, the Agency also restricts holding mobile telephones while driving a CMV.

FMCSA specifically asked commenters whether some CMV drivers (for example, drivers of passenger-carrying vehicles or those carrying hazardous materials) should be more restricted in their mobile telephone use than other CMV drivers. The Agency received a few responses on this issue and those commenters believed FMCSA should treat all CMV drivers equally.

Many commenters were concerned because the proposed rule prohibited the push-to-talk function of a mobile telephone. Some drivers use this function in lieu of a two-way radio. Commenters argued that the push-to-talk function is no different than that of a two-way or CB radio, neither of which were restricted by the proposed rule. One commenter stated that some school bus drivers need to use the push-to-talk function in lieu of actual two-way radio systems because it is their only means of communication. On the other hand, the National School Transportation Association commented that it supports allowing two-way radios, instead of the push-to-talk function, as two-way radios are commonly used in school bus operations.

Some specialized haulers commented that the Agency should provide a push-to-talk exception for specialized transports that use escorts in transporting certain loads (such as high weight or oversized items, often at low speed) because frequent communication is necessary between trucks and escort vehicles. The Maryland Motor Truck Association pointed out that Maryland passed a law on mobile telephone use with a push-to-talk exception.

FMCSA Response. In the NPRM, the Agency defined a mobile telephone as “a mobile communication device that falls under or uses any commercial mobile radio service, as defined in regulations of the Federal Communications Commission (FCC), 47 CFR 20.3.” FMCSA used the FCC's definition for “mobile telephone” in order to ensure consistency between the terms used in the FCC and FMCSA rules and to address emerging technologies. Because the push-to talk features use commercial mobile radio services to transmit and receive voice communications, the device is a mobile telephone; and it also requires the driver or user to hold it. Therefore, its use while driving a CMV is the same as that of a hand-held mobile telephone and is prohibited.

The push-to-talk feature of a mobile telephone can be replaced with the use of a compliant mobile telephone, two-way radios, or walkie-talkies for the short periods of time when communication is critical for utility providers, school bus operations, or specialty haulers. The use of CB and two-way radios and other electronic devices by CMV drivers for other functions is outside the scope of consideration in this rulemaking.

A number of commenters objected to the way the Agency used the term “dial,” and offered alternative suggestions. Werner Enterprises stated that the word “dial” used in the definition was archaic, as it could include voice or speed dialing as it is currently written. Some commenters said the Agency should differentiate between dialing and a single button push to initiate or answer a call, either on the phone or the earpiece, or to enable voice-activated dialing. ATA commented that dialing should be defined as entering a 7 to 10 digit phone number because the rule should allow the driver to use 1 or 2 button pushes to initiate a conversation. Dart Transit stated that consideration should be given to allowing limited key strokes (fewer than four over a predetermined time frame) for technological interaction. The Maryland Motor Truck Association said that the current Maryland Motor Vehicle Law allows a driver to “initiate or terminate a wireless telephone call or to turn on or turn off the hand-held telephone.”

FMCSA Response. In the NPRM, the Agency used the word dial in a general sense to indicate the placement of a call. Although the word dial originated with rotary dial phones, FMCSA acknowledges there are very few phones that still actually have such a feature. Such devices generally do not work on today's telecommunications network because they do not generate a digital tone for each number. The term “dial” is commonly used to mean “make a telephone call,” whether the task is accomplished by entering a 7 to 11 digit phone number or by voice activation or speed dialing. The Agency does not believe it is necessary to introduce another term or create a new term in place of the word “dial.” Thus, FMCSA will not use alternative terminology references for this definition.

If the Agency defined dial in a manner that permitted 3, 4, or even 10 touches or button presses, enforcement would be difficult. The amount of time the driver has his or her eyes off of the forward roadway is the fundamental issue, and the time required to identify and press any given number of buttons would vary from driver to driver. FMCSA, however, has added language to the regulatory text that allows the driver only minimal contact with the mobile telephone in order to conduct voice communication. A driver can initiate, answer, or terminate a call by touching a single button on a mobile telephone or on a headset. This action does not require the driver to take his or her eyes off of the forward roadway for an extended period—comparable to using vehicle controls or instrument panel functions, such as the radio or climate control system.

Many commenters requested that the Agency clarify the term “reaching.” The Owner- Operator Independent Drivers Association (OOIDA) noted that truck drivers safely reach for and press buttons or turn knobs to operate various equipment, including windshield wipers, temperature controls, radios, and CD players. The Snack Food Association, Southern Company, and the State of New York Department of Motor Vehicles commented that prohibiting reaching was “too proscriptive” or broad. The Alliance of Automobile Manufacturers said that this “overly prescriptive” regulatory wording would inhibit development of innovative technologies for the commercial vehicle fleet. One commenter suggested that drivers should be fined for holding the phone to their ear in lieu of establishing the prohibition based on the reaching task because it would be difficult to differentiate between reaching for other items in the cab and reaching for a mobile telephone. The State of New York Department of Motor Vehicles noted that the New York State Vehicle Traffic Law states that “using (a phone) shall mean holding a mobile telephone to, or in the immediate proximity of, the user's ear.” The National Rural Electric Cooperative Association suggested allowing negligible movements to activate a hands-free mobile telephone. ATA recommended educating drivers to place hands-free devices within close proximity. A few commenters asked, why, if the radio, CB, and phone are all located within an easy arm's reach, the Agency is proposing to restrict only the use of hand-held mobile telephones.

FMCSA Response. FMCSA acknowledges commenters' concerns and revises the regulatory text to allow drivers to reach for the compliant mobile telephone ( i.e., hands-free) provided the device is within the driver's reach while he or she is in the normal seated position, with the seat belt fastened. This concept is a familiar one and found elsewhere in the FMCSRs. See, for example, 49 CFR 393.51 (certain CMVs must have an air pressure gauge “visible to a person seated in the normal driving position.”). In addition, the Agency modeled its language on existing National Highway Traffic Safety Administration (NHTSA) rules. The NHTSA rules regarding the location of controls (49 CFR 571.101, S5.1.1) require certain controls, such as the hazard warning signal, windshield wiper, or climate control system, to be located so that they are operable by the driver when, “[t]he driver is restrained by the seat belts installed in accordance with 49 CFR 571.208 (Standard No. 208; Occupant crash protection) and adjusted in accordance with the vehicle manufacturers' instructions” (49 CFR 571.101, S5.6.2). These changes are reflected in the amended definition of “use a hand-held mobile telephone” in § 390.5.

If a compliant mobile telephone is close to the driver and operable while the driver is restrained by properly installed and adjusted seat belts, then the driver would not be considered to be reaching. Reaching for any mobile telephone on the passenger seat, under the driver's seat, or into the sleeper berth are not acceptable actions. To avoid committing a violation of this rule, the driver could use either a hands-free earpiece or the speaker function of a mobile telephone that is located close to the driver. Therefore, in order to comply with this rule, a driver must have his or her compliant mobile telephone located where the driver is able to initiate, answer, or terminate a call by touching a single button, for example, on the compliant mobile telephone or on a headset, when the driver is in the seated driving position and properly restrained by a seat belt.

While several commenters compared the use of hand-held mobile telephones to other electronic devices, arguing either for more comprehensive restrictions or against the regulation of hand-held mobile telephones, the use of other electronic devices by CMV drivers is outside the scope of this rulemaking.

Some drivers noted that they keep their phones in a bracket that allows them to answer and initiate calls without holding the mobile telephone. Some commenters questioned whether such mounted phones are acceptable.

FMCSA Response. Although the Agency did not address the option of mounting the mobile telephone in the NPRM, a compliant mobile telephone mounted close to the driver is an acceptable option, but it is not, however, required in order to be in compliance with the final rule. If a compliant mobile telephone is operated in accordance with this rule, mounted phones are no more distracting than operating the radio, climate control system, or other dash-mounted accessory in the vehicle.

Some commenters, including the National Ready Mix Concrete Association, asked whether phone use would be allowed when the vehicle was parked, but with the engine running.

FMCSA Response. FMCSA removed the language “with or without the motor running.” Now the Agency states that “driving” means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary. The Agency also revised the regulatory text to clarify that the restriction against using a hand-held mobile telephone applies when a CMV is operated “on a highway.” See 49 CFR 390.5 (definition of highway). The Agency believes this clarification addresses emerging technologies such as hybrid vehicles, which are operated at times without the motor running. Therefore, as long the “driver has moved the vehicle to the side of, or off, a highway and has halted the vehicle in a location where it can safely remain stationary,” use of the mobile telephone is allowed. Our new definition for “driving” is addressed in § 383.51 and explained in Part IV, Discussion of the Rule.

Some commenters said they use their mobile telephones to enter the vehicle's odometer reading in the phone when crossing State lines and press the send button to create a time stamp. The American Moving and Storage Association (AMSA) and The Alliance of Automobile Manufacturers were concerned that the synchronizing of mobile telephones with other electronic devices would be affected by this rulemaking. Specifically, Alliance said that the definition of “texting” in § 383.5 should not be revised by removing the dialing exception in paragraph (2)(i). One commenter asked if text-to-voice and voice-to-text functions could be used under this rule.

FMCSA Response. Entering the vehicle odometer reading into a mobile telephone qualifies as texting (49 CFR 390.5) and, therefore, is already prohibited while driving (75 FR 59118, Sept. 27, 2010). Similarly, synchronizing EOBRs or other technologies with mobile telephones would require multiple steps that would result in a driver's eyes off forward roadway. This action should be accomplished when the vehicle is not moving, while safely parked off of the highway. If voice-to-text and text-to-voice functions can be initiated with a single button touch, such as is used to activate voice dialing, they are allowed.

In the definition of “texting” in §§ 383.5 and 390.5, the Agency included the exception for dialing in the texting rule to allow mobile telephone use until the time the Agency decided to address it through separate rulemaking concerning mobile telephones. Removing the dialing option in this rule limits the operator's ability to engage in unsafe, eyes-off-forward-roadway behavior.

The pairing of mobile telephones with in-vehicle technologies may be a violation of other restrictions or regulations. Regardless, the Agency believes a responsible driver would pair or link a mobile telephone to other technologies when the vehicle is stationary and not while he or she is operating a CMV on our Nation's highways.

Many commenters, including OOIDA, questioned why other risky activities that may cause driver distraction were not addressed in this rule. Commenters asked if there would be future prohibitions on activities like reading, operating radios and CBs, or eating. Some asked that global positioning systems (GPS) and dispatching devices be included in the prohibition. The National School Transportation Association cited its recommended policy that “Drivers may not use a cell phone or other personal portable device while operating a school bus or any other vehicle transporting students * * *.” Advocates believed that the Agency should extend the proposal to include other types of electronic devices and technologies that cause driver distraction; otherwise Advocates argued that the Agency's action is arbitrary and capricious.

FMCSA Response. Based on the data from the Olson, et al. (2009) study, the Agency is giving priority to addressing certain risky tasks. The Agency prohibited texting because it is associated with relatively high odds ratios and eyes-off-forward-roadway time. Similarly, both reaching for an object in the vehicle (such as a mobile telephone) and dialing a mobile telephone have significantly high odds ratios. Odds ratios are the odds of being involved in a safety critical event when performing a task compared to not performing that task. Although the OR for “reach for an object in vehicle,” is lower than the OR for “dialing,” the PAR for “reach for an object in vehicle” is the highest PAR in the study. The restriction of hand-held mobile telephone use, which the Agency is defining to include reaching for and dialing tasks, is a logical next step for the Agency in its efforts to prevent distracted driving because mobile telephones are increasingly popular. To address these risky activities, the Agency restricts the use of hand-held mobile telephones. FMCSA is considering an advance notice of proposed rulemaking to seek public comment on the extent to which regulatory action is needed to address other in-cab electronic devices that may result in distracted driving.

A few commenters raised constitutional concerns, namely whether the rule runs afoul of the Fourth or Fourteenth Amendment of the United States Constitution. Specifically, some commenters, including OOIDA, argued that FMCSA violated the Fourth Amendment because it failed to include an enforcement plan and procedural guidelines for its proposed cell phone rule. A professional driver argued that a regulation that restricts the use of hand-held cell phone devices by CMV drivers in interstate commerce violates the Equal Protection Clause of the Fourteenth Amendment because CMV drivers involved in intrastate commerce are not covered by the same proposal. In the alternative, the commenter requested that the U.S. Department of State engage in treaty negotiations with foreign nations to impose similar restrictions and penalties on them when operating CMVs in the United States.

FMCSA Response. The Fourth Amendment concerns raised by OOIDA are without merit. The regulation of the use of a mobile phone while operating a CMV does not constitute a “search” or “seizure” to which the Fourth Amendment applies. A driver could not successfully claim that observance of this conduct would violate a reasonable expectation of privacy. Cf United States v. Knotts, 460 U.S. 276 (1983). Nothing in the rule authorizes enforcement officers to require a driver to make a mobile telephone available so that the officer can review call history for purposes of enforcing this rule. It is the Agency's view that the rule may be enforced without raising Fourth Amendment concerns. Assuming that a Fourth Amendment argument might be raised in connection with the enforcement of the rule, given the government's interest in safety on public highways and the closely regulated nature of the commercial motor vehicle industry, it is FMCSA's view that a Fourth Amendment challenge is unlikely to be successful. Cf. New York v. Burger, 482 U.S. 691 (1987). In any event, the acquisition of evidence in a particular case will be governed by the principles established in judicial precedents interpreting and applying the Fourth Amendment and relevant statutory provisions, such as the Electronic Communications Privacy Act of 1986, Pub. L. 99-508, 100 Stat. 1848 (1986).

The commenter's Fourteenth Amendment argument is misplaced for several reasons. First, a classification distinguishing between interstate and intrastate commerce would be evaluated under a rational relationship test—a minimal level of scrutiny employed in equal protection analysis.

Second, as noted above, both the restriction on the use of hand-held mobile telephones and associated sanctions, including civil penalties and disqualifications, on operators of CMVs in interstate commerce are authorized by statute. While the commenter argued that FMCSA is “segregating and punishing” a certain group of people, Congress exercised its commerce clause powers under the Constitution in authorizing the Agency to regulate the safety of persons operating CMVs in interstate and foreign transportation. Although Congress could have gone further and authorized FMCSA to regulate the safety of transportation that “affected” interstate commerce (generally all intrastate transportation), it has made a rational decision not to give FMCSA that authority, though the Agency's MCSAP funding provides the FMCSA leverage to bring the States into conformity with FMCSA safety regulations. Clearly, Congress had a rational basis in the manner it prescribed the Agency's regulatory authority. Thus, FMCSA believes the Fourteenth Amendment argument is without merit.

In response to the commenter's alternative treaty negotiations argument, the Agency notes that Congress has given FMCSA authority to regulate the safety of foreign nationals operating CMVs within the territorial limits of the United States. See 49 U.S.C. 31132. The definition of “interstate commerce” in that statute covers transportation in the United States that is between a place in a State and “a place outside the United States” (49 U.S.C. 31132(4)). Accordingly, the rule would apply to CMV drivers from other countries who drive CMVs in the United States.

Some commenters believed the civil penalties were too high. The United Transportation Union said there should be an appeals process for disqualifications.

FMCSA Response. The Agency rejects the view that the maximum penalties are too harsh. The applicable civil penalties for violations of this rule are provided by Congress and are consistent with current maximum penalties that can be assessed against an employer and driver for the violation of similar safety regulations. See 49 U.S.C. 521(b)(2); 49 CFR 386, Appendix B, paragraphs (a)(3) and (4). The actual penalty that might result in a proceeding under 49 CFR part 386 would take into account mitigating factors enumerated in 49 CFR 386.81. Driver and motor carrier fines ($2,750 and $11,000, respectively) in the rule are the recommended maximum that the Agency can assess on any violator. States, however, may choose to set the amount of a fine at or below those levels. Additionally, as noted above, civil penalties imposed under FMCSA regulations may be adjusted based on the circumstances of the violation.

In response to the United Transportation Union, FMCSA currently has an appeals process in place for disqualifications. If a driver obtains a “letter of disqualification” for violating the hand-held mobile telephone restriction, he or she can either accept it or petition for review within 60 days after service of such action pursuant to 49 CFR 386.13. The petition must be submitted to FMCSA and must contain the following: (1) Identification of what action the petitioner wants overturned; (2) copies of all evidence upon which petitioner relies, in the form set out in § 386.49; (3) all legal and other arguments that the petitioner wishes to make in support of his/her position; (4) a request for oral hearing, if one is desired, which must set forth material factual issues believed to be in dispute; (5) certification that the reply has been filed in accordance with § 386.31; and (6) any other pertinent material.

Some commenters stated that employers should not be held responsible for a driver's use of a hand-held mobile telephone. Others suggested that employers should be prohibited from calling drivers during work hours. Some commenters said that employers would be fined, instead of drivers, to increase revenue from a violation. The Snack Food Association commented that employer sanctions are inappropriate where an employer has a policy banning hand-held phone use already in place. ATA said that a motor carrier should not be deemed to have allowed hand-held phone use if they have taken good faith steps to ensure compliance. ATA, AMSA, and other commenters suggested the Agency add the word “knowingly” to § 392.82 so that it would read as follows: “No motor carrier shall knowingly allow or require its drivers to use a hand-held mobile telephone while driving a CMV.”

FMCSA Response. FMCSA holds motor carriers accountable for the actions of their employees or drivers, especially when the employer allows or requires the prohibited action. In other words, the employer will generally be held accountable if the employee was doing his or her job, carrying out company business, or otherwise acting on the employer's behalf when the violation occurred.

FMCSA acknowledges the concern raised by industry representatives addressing employer liability for a driver's improper use of a hand-held mobile telephone. We recognize that there will be cases when a CMV driver uses a mobile telephone in violation of the employer's policy. The Agency, however, disagrees with the suggestion by some commenters that the word “knowingly” be added to the restriction in § 392.82(a)(2) that states “no motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV.” As noted above, a motor carrier should put in place or have company policies or practices that make it clear that a carrier does not allow or require hand-held mobile phone use while driving. A motor carrier is responsible for the actions of its drivers.

FMCSA reiterates that motor carriers and employers that allow or require their drivers to use a hand-held mobile telephone will be subject to civil penalties of up to $11,000, as already provided in 49 U.S.C. 521(b)(2)(A), 49 CFR 386.81, and Appendix B to 49 CFR part 386, paragraph (a)(3). A motor carrier must require drivers to observe a duty or prohibition imposed under the FMCSRs. See 49 CFR 390.11.

Several commenters said that enforcement will be difficult and highlighted the lack of enforcement of existing distracted driving laws. Several commenters worried about the mechanics of enforcement. Commenters' concerns related to challenges in law enforcement officers' might have in observing a CMV driver holding the mobile telephone, unless the driver were holding it to his or her ear. AMSA believed that the officer should be required to actually see the driver holding and/or dialing the phone before taking enforcement action.

FMCSA Response. FMCSA does not believe it is necessary to prescribe enforcement procedures and methodology in the rulemaking. The Agency and its State partners, through CVSA and its Training Committee, will develop the procedures and methods to ensure uniform application of the rule. Questions about specific enforcement procedures are not a basis for not taking action to restrict CMV drivers from using hand-held mobile telephones while operating in interstate commerce. The Agency notes, however, that enforcement programs can be successful. Since our texting rule was implemented, FMCSA has had over 300 violations at roadside.

Additionally, NHTSA, as part of its continuing effort to combat distracted driving, sponsored a pilot program in Hartford, Connecticut, and Syracuse, New York, which tested whether increased law enforcement efforts lead distracted drivers to put down their cell phones and focus on the road. During a year long pilot program in Hartford, police cited 9,500 drivers for talking on mobile telephones or texting while driving. Similar results were noted in Syracuse. Enforcement of this rule will involve a period of familiarization with the requirements for both Federal and State enforcement agencies. Therefore, FMCSA believes enforcement officials will be prepared to enforce the rule and be mindful of the factors needed to bring forward a case that would withstand legal challenges.

Based on the available research, the United Motorcoach Association (UMA) felt that the Agency underestimated cognitive distraction and urged FMCSA to continue to study this issue. Advocates, NTSB, and a few other commenters suggested that research supports extending the Agency's prohibition to the hands-free operation of mobile telephones, as well as other electronic devices and technologies capable of causing distraction while driving. Advocates commented that the data in the Hickman, et al. (2010) study came from more safety conscious fleets during a period of elevated focus on the issue of distracted driving. They, therefore, felt that this data should be viewed cautiously since it likely represents a “best case scenario” population for study of distracted driving and may not accurately reflect real-world experience among the majority of commercial drivers who engage in hands-free mobile telephone conversations.

FMCSA Response. The Agency reviewed research on cognitive distraction and determined that existing research results vary. FMCSA did not receive any significant new research reports from the commenters that would influence our decision on this rule.

Hickman, et al. (2010) is the largest and most relevant study on distraction related to CMV drivers. In response to Advocates' comment on whether the fleets in the study represent a “best case scenario” population, the safety consciousness of a fleet could certainly influence the prevalence of tertiary tasks, but it would not influence the risk in performing these tasks while driving. Thus, we disagree with Advocates. The results of the study represent an accurate assessment of the risks associated with distracted driving regardless of the population used.

Some commenters thought that the NPRM prohibited CMV drivers from making emergency calls. Commenters believed that calls could not be made to law enforcement to report vehicle accidents, drunk drivers, or other roadside emergencies.

UMA noted that its members have largely responded to its advisory on the inherent risks of using cellular phones, and have developed and enforced policies that direct drivers to restrict their use of cellular phones to emergency and security purposes only.

FMCSA Response. The Agency agrees with the UMA and the many companies whose cell-phone policies continue to allow the use of mobile telephones to contact law enforcement in cases of emergency and for security purposes. The Agency, however, did not propose to prohibit CMV drivers from placing emergency calls. In the NPRM, the Agency said in § 392.82: “ Emergencies. Using a hand-held mobile telephone is permissible by drivers of a CMV when necessary to communicate with law enforcement officials or other emergency services” (75 FR 80033, Dec. 21, 2010). This final rule allows a CMV driver to use either a hand-held or hands-free mobile telephone to contact law enforcement or other emergency services for such purposes as reporting an accident or drunk driver.

Some industries requested that their drivers be given a blanket exception to the restriction on using hand-held mobile telephones while operating CMVs in interstate commerce. For example, the National Rural Electric Cooperative Association, Southern Company, and other utility companies requested that their business operations be classified as emergency services. Specialty and heavyweight hauling operations, utility companies, and associations representing them also requested exemptions for their respective industries. The Minnesota Department of Transportation requested an exemption for their non-urban area formula transportation providers to allow hand-held mobile telephone use when communicating with other vehicle operators nearby, as well as with dispatch services.

FMCSA Response. Previous Agency decisions support the premise that the CMV operations of utility companies cannot be classified as emergency services. 14 They are subject to varying degrees of regulation by Federal, State, and local authorities and do not specifically deal with the protection of life and property. Public utility employees operate large or hazardous- material-laden vehicles both day and night throughout the year, sometimes under the most adverse weather conditions. During declarations of emergency, drivers may be eligible for exemptions from some regulations under 390.23.

Regarding the concerns of the Minnesota non-urban formula transportation program (which receives financial assistance under the Federal Transit Administration's formula grant program for other than urbanized areas in accordance with 49 U.S.C. 5311), if such service providers are State-owned, then the Federal hand-held mobile telephone restriction will not apply to them; but if the providers are contracted private transportation companies, they will be covered by the restriction. Regardless of whether operators are government-owned or private, the operators may use hands-free mobile telephone communication, including speakerphone or earphone functions, and still abide by the restriction on use of a hand-held phone while operating CMVs.

Accordingly, FMCSA is unable to conclude that granting an exception or waiver to these groups is necessary at this time.

The Agency received several comments regarding outreach. Commenters suggested that early driver education is needed because young CMV drivers are operating their vehicles and are using their phones as if they were driving a car ( e.g., texting, dialing, etc. ). Therefore, commenters recommended that the Agency require CDL schools to educate students on the dangers of cell phone use while driving CMVs.

FMCSA Response. The Agency agrees that enforcement and outreach efforts are essential to increase public awareness. Previous DOT campaigns, such as those addressing safety belt use and drinking and driving, have proven to reduce injuries and fatalities. DOT already has in place distracted driving campaigns to educate all vehicle drivers on distracted driving. The Agency believes that many of these efforts are reaching the CMV driver population, both experienced and new drivers. Platforms for sharing distracted driving information include the Web site, http://www.Distraction.gov, as well as outreach on radio and television, which have generally reduced unsafe driver behaviors and boosted compliance awareness.

For more information on research, outreach, and education, the reader may reference NHTSA's Driver Distraction Program. This program is a plan to communicate NHTSA's priorities to the public with regard to driver distraction safety challenges, focusing on the long- term goal of eliminating crashes that are attributable to distraction. The complete overview can be found at http://www.distraction.gov/files/dot/6835_DriverDistractionPlan_4-14_v6_tag.pdf. The Secretary considers preventing distracted driving a priority for the Department and has promoted funding for education, awareness, and outreach on this initiative.

Many commenters suggested that a mobile telephone prohibition be applied to all vehicle drivers, including passenger car drivers, law enforcement, hazardous materials transporters, and government employees, among them publicly-employed school bus drivers.

FMCSA Response. The Agency does not have statutory authority to regulate non-CMV drivers. As noted above, other than transportation covered by statutory exemptions, FMCSA has authority to restrict the use of mobile telephones by drivers operating CMVs in interstate commerce.

The New England Fuel Institute, Werner Enterprises, the Alliance of Automobile Manufacturers, and others commented on the language used in the NPRM preamble that stated: “The Agency is proposing to allow hands-free mobile telephone use as long as it does not require the driver to reach for, dial, or hold a mobile telephone, taking the driver's eyes off the forward roadway and a hand off the wheel.” The commenters felt that the Agency's use of the phrase “a hand off the wheel” was too restrictive and that it sounded as if FMCSA was implying that drivers maintain both hands on the wheel at all times.

FMCSA Response. The Agency understands that drivers often take a hand off the steering wheel to operate the many controls located in a CMV, including the many instrument panel functions, and to shift a manual transmission. It was not the intent of the Agency to prevent a driver from doing necessary tasks required to safely operate the vehicle. FMCSA has not repeated the referenced discussion in the final rule. This clarification will correct any misperception the previous discussion may have created.

FMCSA received one comment regarding the analytical treatment of driver compliance in the Agency's Preliminary Regulatory Evaluation. The commenter argued that the Agency's assumption of 100 percent compliance overstates the potential benefits of the rule. The commenter further argued that monitoring and enforcing the rule would be problematic and imperfect, which would further make compliance inconsistent.

FMCSA Response. When FMCSA conducts regulatory evaluations for rulemakings, the Agency must establish a baseline for its analysis, which essentially describes the current state of the regulatory conditions involved. A baseline, according to the Office of Management and Budget (OMB) guidance, is “the best assessment of the way the world would look absent the proposed regulation.”  15

The purpose of a regulatory evaluation is to provide decision makers with the estimated costs and benefits associated with the rule. Sometimes the goal of regulation is to correct a deficiency in existing rules manifested, for example, by excessive enforcement violations. In developing the regulatory evaluation, the Agency assumes complete compliance and attempts to show the impact of the provision once it is implemented. When estimating the costs and benefits of rules, the analysis must therefore assume complete (100%) compliance in its hypothetical depiction of various options. This approach creates an “all things equal” relationship between the multiple options within a given rule, as well as between the various rules.

Generally speaking, a reduction in compliance, theoretical or actual, reduces not only the associated benefits of a rule, but also the associated costs. Departures from the assumption of full compliance (an accounting of all costs and benefits) removes some costs and some benefits, and therefore, does not result in an overstatement of the potential benefits (or costs) of the rule.

FMCSA received one comment concerning its estimation of costs and benefits in the Agency's Preliminary Regulatory Evaluation. Advocates argued that the FMCSA's cost/benefit analysis shows that the highest net benefit would result from adopting a cell phone restriction that applies to all commercial drivers and to both hand-held and hands-free use of cell phones. Advocates further stated that implementing the lower cost requirement in the final rule would be the better choice.

FMCSA Response. The FMCSA agrees with Advocates' comment that the Agency's cost/benefit analysis shows that the highest net benefit would result from adopting a complete cell phone ban for all CMV drivers. The commenters, however, did not recognize the distinction between a cost/benefit analysis and a threshold analysis, which are both used in the Agency's analysis for this rule. OMB recognizes that it will not always be possible to express in monetary units all of the important benefits and costs of rules. If the non-quantified benefits and costs are likely to be important, OMB guidance  16 requires that a threshold analysis be carried out in order to evaluate their significance. A threshold or a break-even analysis answers the question, “how small could the value of the non-quantified benefits be (or how large would the value of the non-quantified costs need to be) before the rule would yield zero net benefits”?

The Agency is not required to choose the regulatory option with the highest net benefit. In the NPRM, FMCSA offered its preference for Option Four (a restriction on the use of hand-held mobile telephones by all interstate CMV drivers) because it minimizes (for an entire CMV population) the costs of restricting mobile telephone use, including costs associated with inconvenience, disruption of patterns of business operations, and stifling technological innovations. Furthermore, it is not clear whether talking on a mobile telephone presents a significant risk while driving.

In the final Regulatory Evaluation, the Agency recalculated the estimated costs in order to incorporate a more recent price of diesel fuel. The recalculation affected Options Two (a restriction on the use of all mobile telephones while operating a CMV for all interstate drivers) and Three (a restriction on the use of all mobile telephones while operating a passenger carrying CMV for all interstate drivers). The revised estimated net benefits of Option Two are negative.

PHMSA received one comment from the Chemical Facility Security News concerning the reporting of security incidents. The commenter was concerned that a ban on the use of cell phones may prevent drivers from reporting potential security threats while en route to their destination. The commenter noted that over the road truck drivers were one of the first groups that the Department of Homeland Security (DHS) targeted in its “If You See Something, Say Something TM ” Campaign. DHS recognized that truck drivers would be seeing many things in operation of their commercial vehicles that might be indicators of potential terrorist activities, including attempts at hijacking hazardous materials. The commenter recognizes that this rule would not stop those reports from being made, but would require the delay of those reports until the vehicle was parked off the roadway.

PHMSA Response. As noted above in the FMCSA response, this final rule allows a CMV driver to use either a hand-held or hands-free mobile telephone to contact law enforcement or other emergency services for such purposes as reporting potential terrorist activities, including attempts to hijack hazardous materials.

A few commenters, including API, NTSB, and Advocates thought that PHMSA should ban both hand-held and hands-free mobile telephone use. The ATA strongly opposed banning of hands-free devices.

PHMSA Response. See FMCSA response above.

API also suggested that PHMSA ban the use of CB radios for drivers of CMVs. The commenter suggests adding regulatory language to include restricting the use of “CB radios or other headset devices.”

PHMSA Response. The use of CB radios by CMV drivers is outside the scope of this rulemaking.

ATA stated that employers should not be held responsible for a driver's use of a hand-held mobile telephone. ATA suggested the Agency add the word “knowingly” to § 392.82 so that it would read as follows: “No motor carrier shall knowingly allow or require its drivers to use a hand-held mobile telephone while driving a CMV.”

PHMSA Response. See FMCSA response above.

Robert Baldwin is concerned that state police and other law enforcement officials will not be held to the same standard as CMV drivers.

PHMSA Response. The use of mobile communications devices by law enforcement officials is outside the scope of this rulemaking.

This rule amends regulations in 49 CFR parts 177, pertaining to carriage of hazardous materials by public highway; parts 383 and 384, concerning the Agency's CDL regulations; part 390, general applicability of the FMCSRs; part 391, driver qualifications and disqualifications; and part 392, driving rules. In general, this rule reduces the risks of distracted driving by restricting hand-held mobile telephone use by drivers who operate CMVs.

This rulemaking restricts a CMV driver from holding a mobile telephone to conduct a voice communication, dialing a mobile telephone by pressing more than a single button, or reaching for a mobile phone in an unacceptable and unsafe manner ( e.g. reaching for any mobile telephone on the passenger seat, under the driver's seat, or into the sleeper berth). Thus, a driver of a CMV who desires to use a mobile phone while driving will need to use a compliant mobile telephone (such as hands-free) located in close proximity to the driver that can be operated in compliance with this rule. Thus, the ease of “reach” or accessibility of the phone is relevant only when a driver chooses to have access to a mobile telephone while driving. Essentially, the CMV driver must be ready to conduct a voice communication on a compliant mobile telephone, before driving the vehicle. The rule includes definitions related to the hand-held mobile telephone restriction.

The rule adds a driver disqualification provision for: (1) Interstate CMV drivers convicted of using a hand-held mobile telephone, and (2) CDL holders convicted of two or more serious traffic violations of State or local laws or ordinances on motor vehicle traffic control, including using a hand-held mobile telephone. The rule also requires interstate motor carriers to ensure compliance by their drivers with the restrictions on use of a hand-held mobile telephone while driving a CMV. Finally, the rule prohibits motor carriers and employers from requiring or allowing a CMV driver to use a hand-held mobile telephone while operating in interstate commerce.

There is a limited exception to the hand-held mobile telephone restriction. This exception allows CMV drivers to use their hand-held mobile telephones if necessary to communicate with law enforcement officials or other emergency services.

This rulemaking also amends the authority citations for 49 CFR parts 177, 383, 384, 390, 391, and 392 to correct statutory references and eliminate references that are either erroneous or unnecessary.

PHMSA adds a new paragraph (c) to prohibit the use of hand-held mobile telephones by any CMV driver transporting a quantity of hazardous materials requiring placarding under Part 172 of the 49 CFR or any quantity of a material listed as a select agent or toxin in 42 CFR Part 73. As such, motor carriers and drivers who engage in the transportation of covered materials must comply with the distracted driving requirements in § 392.82 of the FMCSRs. This ensures that the FMCSA restriction on a driver's use of hand-held mobile telephones applies to both intrastate and interstate motor carriers operating CMVs as defined in 49 CFR 390.5.

FMCSA adds a new definition for the term “mobile telephone.” The Agency adopts a definition of “mobile telephone” based on the FCC regulations to cover the multitude of devices that allow users to send or receive voice communication while driving. It identifies the type of activity that is restricted by this rule.

The definition of “mobile telephone” reflects the wide variety of radio telephone services, in addition to cell phone services, that are licensed by FCC and might be available for use in a CMV. “Mobile telephone” could include, for example, a satellite telephone service or a broadband radio service. Using such wireless communication services is just as distracting to a CMV driver as using a cell phone. FCC classifies these services as “commercial mobile radio services,” which are incorporated into the definition of mobile telephone. The FCC definition for mobile telephone does not include two-way or Citizens Band radio services.

To be consistent and to address commenters' concerns, FMCSA modified the existing definition of “texting” in 49 CFR 390.5 to reflect the Agency's restriction on a driver's use of a hand-held mobile telephone in this rule. FMCSA eliminated the dialing exception, as it would now be considered texting. Under the provisions implemented in this rule, the driver can press a single button to initiate or terminate a call. The Agency also removed the proposed definition of “using a hand-held mobile telephone” from § 383.5. Part 383 establishes the disqualification of CDL drivers that is defined by State or local law or ordinance on motor vehicle traffic control that restricts or prohibits the use of hand-held mobile telephones. In contrast, the Federal disqualification standards and definitions are contained in §§ 391.15 and 390.5.

In Table 2 to 49 CFR 383.51, FMCSA adds a new serious traffic violation that would result in a CDL driver being disqualified. This serious traffic violation is a conviction for violating a State or local law or ordinance on motor vehicle traffic control restricting or prohibiting hand-held mobile telephone use while driving a CMV. The Agency modified the definition of “driving” in footnote 2, removing the phrase “with the motor running” and replacing it with “on the highway” (consistent with our definition of “highway” in 49 CFR 390.5), to clarify the scope of the restriction. The modified definition now reflects the use of hybrid vehicles on the highways, which can be operated without the motor running. Our definition for “driving” now reads as follows: “ Driving, for the purpose of this disqualification, means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.” The Agency's decision to change the definition of driving is consistent with the provisions of 49 U.S.C. 31310(e), which indicates the serious traffic violation must occur while the driver is operating a CMV that requires a CDL; the operative provisions in the revised table 2 of § 383.51(c) limit the types of violations that could result in a disqualification accordingly.

States must disqualify a CDL driver whenever that driver is convicted of the triggering number of violations while operating in any State where such conduct is restricted or prohibited by a State or local law or ordinance on motor vehicle traffic control.

Due to intervening amendments (76 FR 39019, July 5, 2011; 76 FR 68332, November 4, 2011), FMCSA redesignates proposed paragraph (f) as paragraph (h). It requires all States that issue CDLs to implement the new provisions in part 383 that relate to disqualifying CDL drivers for violating the new serious traffic violation of using a hand-held mobile telephone while driving a CMV. States are required to implement these provisions as soon as practical, but not later than 3 years after this rule is effective.

FMCSA modifies several discretionary regulatory exemptions concerning the applicability of the existing FMCSRs, including one for school bus operations and one for CMVs designed or used to transport between 9 and 15 passengers (including the driver), not for direct compensation (49 CFR 390.3(f)(1) and (6)). The Agency finds that this action is necessary for public safety regarding school bus transportation by interstate motor carriers, a finding required by the applicable statutory provisions, as explained above in the legal authority section. In addition, the Agency determined that, in order to enhance public safety to the greatest extent possible, the rule will apply to the operation by drivers of small, passenger-carrying vehicles (designed to transport 9-15 passengers), not for direct compensation, who are otherwise exempt from most of the FMCSRs under 49 CFR 390.3(f)(6).

FMCSA amends 49 CFR 390.5 by adding new definitions for the terms “mobile telephone” and “use a hand-held mobile telephone,” for general application. In this rulemaking, FMCSA defines “use a hand-held mobile telephone” to clarify that certain uses of a hand-held mobile telephone are restricted, including holding, dialing, and reaching in a proscribed manner for the mobile telephone to conduct voice communication. (That is, if a compliant mobile telephone is close to the driver and operable by the driver while restrained by properly installed and adjusted seat belts, then the driver would not be considered to be reaching. Reaching for any mobile telephone on the passenger seat, under the driver's seat, or into the sleeper berth are not acceptable actions.) As stated above in § 383.5, FMCSA also modified the definition of “texting.”

FMCSA recognizes that mobile telephones often have multi-functional capability and is not prohibiting the use of mobile telephones for other uses. Of course, other types of activities using a mobile telephone might be covered by other rules, such as those addressing texting while driving a CMV.

FMCSA amends 49 CFR 391.2, which provides certain exceptions to the requirements of part 391 for custom farm operations, apiarian industries, and specific farm vehicle drivers, to enable the Agency to make violations of the Federal mobile telephone restriction a disqualifying offense for such drivers. While the explicit Federal restriction against hand-held mobile telephone use applies directly to these drivers, the disqualification provision in § 391.15(g) below would not apply without this amendment to the current exceptions under 49 CFR 391.2.

FMCSA adds a new paragraph (f) to 49 CFR 391.15 entitled, “Disqualification for violation of restriction on using a hand-held mobile telephone while driving a commercial motor vehicle.” This provision provides for the disqualification from operating a CMV in interstate commerce of any driver convicted of two or more violations within a 3-year period of the new hand-held mobile telephone use restriction while operating a CMV as set forth in § 392.82. For the driver's first hand-held mobile telephone use conviction, the Agency could assess a civil penalty against the driver. If a driver is convicted of committing a second hand-held mobile telephone use violation within 3 years, he or she would be disqualified for 60 days, in addition to being subject to the applicable civil penalty. For three or more hand-held mobile telephone use convictions for violations committed within 3 years, a driver would be disqualified for 120 days, in addition to being subject to the applicable civil penalty.

This change to the disqualifying offenses for interstate drivers mirrors the Agency's corresponding new provisions governing the disqualification offenses for CDL drivers in § 383.51(c). The required number of convictions to cause a disqualification by FMCSA and the period of disqualification is the same: 60 days for the second offense within 3 years and 120 days for three or more offenses within 3 years. In addition, the first and each subsequent violation of such a restriction or prohibition by a driver are subject to civil penalties imposed on such drivers, in an amount up to $2,750 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and Appendix B, A(4)).

FMCSA eliminates the exception pertaining to school bus drivers as a necessary change in light of § 390.3 (f)(1) and (6).

In § 392.82(a), FMCSA adds a new restriction on use of a hand-held mobile telephone while driving a CMV. This section also states that motor carriers must not allow or require CMV drivers to use a hand-held mobile telephone while driving. Any violation by an employer would subject the employer to civil penalties in an amount up to $11,000 (49 U.S.C. 521(b)(2)(A), 49 CFR 386.81 and part 386 Appendix B, paragraph (a)(3)).

In § 392.82(b), a definition of “driving a commercial motor vehicle” is incorporated into the restriction on use of a hand-held mobile telephone while driving, in order to confine the use of that term to the restriction and the related disqualification. We also seek to avoid limiting the scope of the same term as used in other provisions of the FMCSRs.

FMCSA has eliminated the exception pertaining to school bus drivers as a necessary change in light of § 390.3 (f)(1) and (6).

FMCSA adds a limited exception to the hand-held mobile telephone restriction to allow CMV drivers to use their hand-held mobile telephones if necessary to communicate with law enforcement officials or other emergency services. Emergency services are not limited to traditional emergency responders. It may include those who provide security and protection in the special environments in which CMV drivers operate. CMV drivers are always encouraged to report incidents that may threaten national security in a manner consistent with safety.”  17

The rule adopted here restricts the use of hand-held mobile telephones by drivers of CMVs. FMCSA adds new driver disqualification sanctions for: (1) Interstate drivers of CMVs who fail to comply with this Federal restriction and (2) CDL holders who have multiple convictions for violating a State or local law or ordinance on motor vehicle traffic control that restricts the use of hand-held mobile telephones. Additionally, motor carriers operating CMVs are prohibited from requiring or allowing a CMV driver to engage in the use of a hand-held mobile telephone. This rulemaking improves safety on the Nation's highways by reducing the prevalence of distracted driving-related crashes, fatalities, and injuries involving drivers of CMVs. In addition, the rulemaking reduces the financial and environmental burden associated with these crashes and promotes the efficient movement of traffic and commerce on the Nation's highways. The National Highway Traffic Safety Administration reports that, in 2009, 5,474 people were killed on U.S. roadways in motor vehicle crashes that were reported to have involved distracted driving. 18 These fatalities impose a considerable monetary cost to society estimated to be approximately $32.8 billion. 19 In the regulatory evaluation (in the docket for this rule), FMCSA estimates the benefits and costs of implementing a restriction on the use of hand-held mobile telephones while driving a CMV.

FMCSA and PHMSA's threshold analysis for this rule shows that restricting hand-held mobile telephones would lead to an estimated one-year cost of $12.1 million. Current guidance from DOT's Office of the Secretary places the value of a statistical life at $6.0 million. Consequently, this rule will need to eliminate any combination of crash types equivalent to two fatalities per year in order for the benefits of this rule to equal the costs. These results are summarized below in Table 1.

FMCSA and PHMSA have determined that this rulemaking action is a significant regulatory action under Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563 (76 FR 3821, Jan. 21, 2011), and that it is significant under DOT regulatory policies and procedures because of the substantial Congressional and public interest concerning the crash risks associated with distracted driving. However, the estimated economic costs do not exceed the $100 million annual threshold.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and 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. Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities and mandates that agencies strive to lessen any adverse effects on these businesses.

Carriers are not required to report revenue to the Agency, but are required to provide the Agency with the number of power units (PUs) they operate when they register with the Agency and to update this figure biennially. Because FMCSA does not have direct revenue figures, PUs serve as a proxy to determine the carrier size that would qualify as a small business given the SBA's revenue threshold. In order to produce this estimate, it is necessary to determine the average revenue generated by a PU.

With regard to truck PUs, the Agency determined in the 2003 Hours-of-Service Rulemaking RIA  20 that a PU produces about $172,000 in revenue annually (adjusted for inflation). 21 According to the SBA, motor carriers with annual revenue of $25.5 million are considered small businesses. 22 This equates to 148 PUs (25,500,000/172,000). Thus, FMCSA considers motor carriers of property with 148 PUs or fewer to be small businesses for purposes of this analysis. The Agency then looked at the number and percentage of property carriers with recent activity that would have 148 PUs or fewer. The results show that at least 99 percent of all interstate property carriers with recent activity have 148 PUs or fewer. 23 This amounts to 481,788 carriers. Therefore, the overwhelming majority of interstate carriers of property are considered small entities.

With regard to passenger carriers, the Agency conducted a preliminary analysis to estimate the average number of PUs for a small entity earning $7 million annually, based on an assumption that a passenger-carrying PU generates annual revenues of $150,000. This estimate compares reasonably to the estimated average annual revenue per PU for the trucking industry ($172,000). The Agency used a lower estimate because passenger carriers generally do not accumulate as many vehicle miles traveled (VMT) per PU as carriers of property;  24 and it is assumed, therefore, that they would generate less revenue on average. The analysis concludes that passenger carriers with 47 PUs or fewer ($7,000,000 divided by $150,000/PU = 46.7 PU) are considered small entities. The Agency then looked at the number and percentage of passenger carriers registered with FMCSA that have 47 PUs or fewer. The results show that at least 96 percent of all interstate passenger carriers with recent activity have 47 PUs or fewer. 25 This amounts to 11,338 carriers. Therefore, the overwhelming majority of interstate passenger carriers are considered small entities.

In order to estimate the economic impact of the rule on small entities, FMCSA computed a total annual cost per carrier for each industry segment. First, FMCSA allocated the total cost  26 of the rule in the first year among property and passenger carriers according to their respective shares of total carrier population. 27 Interstate property carriers constitute 98 percent of the total of interstate carriers, whereas interstate passenger carriers constitute 2 percent. The total annual cost of the rule ($12,095,948)  28 was thus weighted by 98 percent for property carriers, leading to a total cost of $11,854,036, and by 2 percent for passenger carriers, leading to a total cost of $241,919. Next, FMCSA divided the two weighted costs by their respective number of small carriers, as described above, arriving at a cost-per-carrier for each segment: $11,854,029/481,788 = $24.60 for property carriers; and $241,919/11,338 = $21.33 for passenger carriers, for a weighted average of $24.50 per small entity.

While this rule clearly impacts a substantial number of small entities, the Agency does not consider a weighted average cost of approximately $24.50 per entity per year to be economically significant in light of the estimated average annual revenue of $172,000. 29 30

Similarly, PHMSA has conducted an economic analysis of the impact of this rule on small entities. PHMSA's incorporation of the FMCSA restriction into the HMR may affect nearly 1,490 small entities; however, the direct costs of this rule that small entities may incur are only expected to be minimal. PHMSA relied on the cost estimates for property carriers identified by FMCSA above since these costs were higher than PHMSA found in its regulatory flexibility analysis conducted in support of its April 29, 2011 NPRM. While the final rule will clearly impact a substantial number of small entities, the Agency did not consider an average annual cost of $24.50 per entity to be economically significant.

Accordingly, FMCSA and PHMSA Administrators certify that a regulatory flexibility analysis is not necessary.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), FMCSA and PHMSA seek to assist small entities in their understanding of this rule so they can better evaluate its effects on them. If the rule affects your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA personnel listed in the FOR FURTHER INFORMATION CONTACT section of this rule. FMCSA will not retaliate against small entities that question or complain about this rule or any policy or action of the Agency.

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 FMCSA, call 1-(888) REG-FAIR (1-(888) 734-3247).

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 $ 143.1 million (which is the value of $100 million in 2010 after adjusting for inflation) or more in any 1 year. Though this rule will not result in such expenditure, FMCSA and PHMSA discuss the effects of this rule elsewhere in this preamble.

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

FMCSA and PHMSA conducted a Privacy Threshold Analysis for the rule on restricting the use of hand-held mobile telephones by drivers of CMVs and determined that it is not a privacy-sensitive rulemaking because the rule does not require any collection, maintenance, or dissemination of Personally Identifiable Information from or about members of the public.

A rule has implications for federalism under Executive Order 13132 entitled, “Federalism,” if it has a substantial direct effect on State or local governments, on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. FMCSA and PHMSA recognize that, as a practical matter, this rule may have some impact on the States. None of the State interests contacted by FMCSA, however, or any other commenter expressed concerns to the FMCSA or PHMSA dockets pertaining to the Federalism implications of this rulemaking initiative.

In the most general sense, under long-standing principles, the FMCSRs establish minimum safety regulations that may be supplemented by the States, as long as they are consistent with the regulations. The NPRM described the effect of the proposed rules in accordance with provisions already set forth in the FMCSRs, which establish the basis for the scope of any preemption (75 FR 16398, Apr. 1, 2010). Specifically, 49 CFR 390.9 states that except as otherwise specifically indicated, subchapter B of this chapter [III of Title 49, CFR] is not intended to preclude States or subdivisions thereof from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations by the persons subject thereto.

This provision allows the States and their subdivisions to enforce their laws and regulations relating to safety, as long as that would not preclude persons subject to the FMCSRs from fully complying with them. This provision satisfies the requirements of 49 U.S.C. 31136(c)(2)(B) by minimizing unnecessary preemption and allowing the States to establish additional regulations that do not prevent full compliance with the FMCSRs. ( See also 49 U.S.C. 31141(c)).

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 entitled, “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 entitled, “Civil Justice Reform,” to minimize litigation, eliminate ambiguity, and reduce burden.

FMCSA and PHMSA analyzed this rule under Executive Order 13045 entitled, “Protection of Children from Environmental Health Risks and Safety Risks.” This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.

FMCSA and PHMSA analyzed this rule under Executive Order 13211 entitled, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” The agencies determined that it is not a “significant energy action” under that order. Though it is nonetheless a potentially “significant regulatory action” under Executive Order 12866, it 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, OMB, 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 (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, 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.

FMCSA and PHMSA are not aware of any technical standards used to address mobile telephone use by CMV drivers and, therefore, did not consider any such standards.

FMCSA analyzed this rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ), determined under our environmental procedures Order 5610.1, published March 1, 2004, in the Federal Register (69 FR 9680), and preliminarily assessed that this action requires an Environmental Assessment (EA) to determine if a more extensive Environmental Impact Statement (EIS) is required. The findings in the Final EA indicate there are no significant positive or negative impacts to the environment expected from the various options in the rule though there could be minor impacts on emissions, hazardous materials spills, solid waste, socioeconomics, and public health and safety. Thus, FMCSA, as the lead agency in this initiative, issues a Finding of No Significant Impact (FONSI) and will not perform an EIS.

PHMSA discussed NEPA requirements in its April 29, 2011 NPRA (76 FR 23929). Specifically, PHMSA indicated that it did not anticipate any significant positive or negative impacts on the environment expected to result from the rulemaking action. In the NPRM, PHMSA requested comments regarding safety and security measures that would provide greater benefit to the human environment or on alternative actions the agency could take that would provide beneficial impacts. PHMSA did not receive any comments on this matter.

In addition, the FMCSA prepared an Environmental Assessment for this rulemaking, and will sign a Finding of No Significant Impact (FONSI). As is noted in 40 CFR 1506.3, it is appropriate for an agency to accept an environmental document in part or in whole, as long as the actions covered by the original NEPA analysis are substantially the same. PHMSA hereby states that the rulemakings are substantially similar, and adopts the Final Environmental Assessment (FEA) as prepared by FMCSA, as well as the conclusions the FEA reaches. The FMCSA FEA has been used to support a FONSI, which has been prepared and signed by the appropriate decision maker within PHMSA. No further NEPA analysis will be performed.

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 will not result in any potential increase in emissions that are above the general conformity rule's de minimis emission threshold levels (40 CFR 93.153(c)(2)). Moreover, based on our analysis, it is reasonably foreseeable that the rule will not significantly increase total CMV mileage, nor will it significantly change the routing of CMVs, how CMVs operate, or the CMV fleet-mix of motor carriers. The action merely establishes requirements to restrict a driver's use of a hand-held mobile telephone while operating a CMV.

For the reasons discussed in the preamble, FMCSA and PHMSA amend 49 CFR parts 177, 383, 384, 390, 391, and 392 as follows:

The spiny lobster fishery of the Gulf of Mexico (Gulf) and the South Atlantic is managed under the FMP. The FMP was prepared by the Councils and implemented through regulations at 50 CFR parts 622 and 640 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On September 2, 2011, NMFS published a notice of availability for Amendment 10 and requested public comment (76 FR 54227). On September 23, 2011, NMFS published a proposed rule for Amendment 10 and requested public comment (76 FR 59102). The proposed rule and Amendment 10 outline the rationale for the actions contained in this final rule. A summary of the actions implemented by this final rule are provided below.

This final rule will remove all species from the FMP except the Caribbean spiny lobster (spiny lobster). The Councils and NMFS have determined the four other lobster species currently in the FMP are not in need of Federal management at this time. If landings or effort change for the lobster species being removed from the FMP and the Councils determine management at the Federal level is needed, these species could be added back into the FMP at a later date.

This rule will establish an ACL, an annual catch target (ACT) and an AM for spiny lobster. For the recreational and commercial spiny lobster sectors combined, the ACL is 7.32 million lb (3.32 million kg), whole weight. The combined ACT is 6.59 million lb, (2.99 million kg) whole weight. The ACT will serve as the AM for the spiny lobster stock. If the ACT is exceeded in any year, the Councils will convene a scientific panel to review the ACL and ACT, and determine if additional AMs are needed.

This final rule revises the Federal spiny lobster tail-separation permit requirements to ensure permit issuance is limited to commercial fishermen. This rule requires applicants for a Federal spiny lobster tail-separation permit to possess either (1) a Federal spiny lobster permit or (2) a valid Florida Restricted Species Endorsement and a valid Crawfish Endorsement associated with a valid Florida Saltwater Products License.

This rule also requires lobster to be landed either all whole or all tailed during a single fishing trip to discourage selective tailing of potentially undersized lobsters and thereby aid the enforcement of the minimum size limit.

This rule revises Federal regulations specific to the use of undersized attractants to be consistent with current Florida regulations, which allow the retention of as many as 50 spiny lobsters less than the minimum size limit and one per trap.

To facilitate timely adjustments to harvest parameters and other management measures, this final rule revises the current framework procedures. This revision gives the Councils and NMFS greater flexibility to more promptly alter harvest parameters and other management measures as new scientific information becomes available.

An Endangered Species Act (ESA) biological opinion, completed on August 27, 2009, evaluated the impacts of the continued authorization of the spiny lobster fishery on ESA-listed species. The biological opinion required the consideration of alternatives to allow the public to remove trap-related marine debris in the exclusive economic zone (EEZ) off Florida. This rule authorizes the removal of traps in Federal waters off Florida through Florida's trap cleanup program, as provided in existing Florida regulations. Florida's trap cleanup program includes provisions for public participation.

Additionally, this rule includes new incorporations by reference and revises a number of references within the Federal regulations for spiny lobster. Specifically, this rule updates the spiny lobster regulations with the contact information for the state of Florida administrative offices and the relevant references within the Florida statutes and administrative code that are contained within the Federal regulations at 50 CFR parts 622 and 640. New material that is incorporated by reference includes Florida Administrative Code Rules 68B-55.002 (Retrieval of Trap Debris) and 68B-55.004 (Retrieval of Derelict and Traps Located in Areas Permanently Closed to Trapping). These additional revisions are unrelated to the actions contained in Amendment 10.

NMFS received nine public comment submissions on Amendment 10 and the proposed rule, including two comments from individuals, four copies of a form letter sent by individuals, and two comments from non-governmental organizations. A Federal agency also submitted a letter stating they had no comment on the rule. Comments related to the actions contained in the amendment or the proposed rule are summarized and responded to below.

Comment 1: New regulations on recreational lobster fishermen will not help protect lobster and corals because commercial fishing has a bigger impact on these resources than the recreational sector.

Response: The Magnuson-Stevens Act requires ACLs and AMs for most federally managed species. Both the commercial and recreational sectors must be accountable. This rule sets a single ACL and a single ACT that apply to both sectors. The ACT of 6.59 million lb (2.99 million kg) is higher than the recent 10-year average of landings for the commercial and recreational sectors combined, and has only been exceeded once in the past 10 years. Therefore, this ACT is not expected to be exceeded and AMs are not expected to be triggered, resulting in no change to how commercial or recreational lobster fishing is prosecuted.

Comment 2: The use of undersized attractants in the lobster commercial sector should be prohibited.

Response: Although the use of undersized lobsters as attractants results in increased confinement mortality, to prohibit their use may actually increase total bycatch because traps with alternate types of bait need to soak longer to achieve the same catch levels as traps with undersized attractants. Additionally, recent information shows the majority of recruits do not come from within the United States, suggesting that the use of undersized Caribbean spiny lobsters and other management measures for the Caribbean spiny lobster fishery would have negligible biological impacts on the lobster population within the United States. Based in part on these findings, it is unlikely that the continued use of undersized Caribbean spiny lobsters as attractants would have significant adverse effects on the biological environment.

Comment 3: Actions to remove species from the FMP, set an ACL and AM, update the framework procedures, and give authority to Florida to clean up traps in the EEZ were supported.

Response: NMFS agrees these actions are necessary and appropriate.

Comment 4: Allocations between the lobster commercial and recreational sectors should be set with at least 26 percent of the stock allocated to the recreational sector.

Response: Allocations would be necessary if sector ACLs were set. However, the Councils chose to set a single stock ACL and ACT. The Councils chose not to designate sector allocations to minimize the administrative burden of tracking separate landings for each sector. Also, because the ACL will likely not be exceeded under the current fishery conditions, which will allow both sectors to harvest what they have in past years, thereby avoiding the need to specifically allocate the resource. The Councils may review the decision for sector allocations if landings increase in the future.

Comment 5: Federal tailing permits should be eliminated and lobster should be landed all whole.

Response: The ability to tail spiny lobsters is important to fishermen who do not have the storage capacity to hold large amounts of whole spiny lobster onboard over long trip durations. Tailing allows such fishermen to safely store more product in coolers without compromising quality, thus maximizing the profitability of each trip. A Federal spiny lobster tail-separation permit is required to possess spiny lobsters that have been tailed, and the trips must be 48 hours or longer in duration. The regulations implemented through this rule require permits designating the entity as a commercial fisher to obtain a tail-separation permit.

Comment 6: Do not finalize Amendment 10 until the supplemental environmental impact statement for Amendment 11 to the Spiny Lobster FMP is completed and impacts to Acropora are analyzed.

Response: Delaying implementation of Amendment 10 would produce no benefit to Acropora. The impacts of spiny lobster trapping on Acropora were analyzed in the biological opinion. The measures to protect Acropora will be addressed in Amendment 11, which is currently being developed and is expected to be implemented before the beginning of the next fishing season, which begins August 6, 2012.

Comment 7: Lobster traps should be prohibited in all areas with Acropora, cumulative impacts to Acropora should be analyzed, and the benefits to marine mammals and other imperiled species should be considered when establishing closed areas.

Response: The impacts of lobster trap fishing on protected species, including cumulative impacts, were analyzed in the 2009 biological opinion, which can be found in Appendix I of Amendment 10. Amendment 11 will address closing areas with Acropora to lobster fishing.

Comment 8: NMFS should analyze the decision to take four spiny lobster species off the federally managed list under the ESA. The four species should be designated as ecosystem component species.

Response: The decision to remove species from the FMP was analyzed in Amendment 10. These species were originally added to the FMP for data collection purposes; however, even after these species are removed from the FMP, if they are landed and sold to a Federally permitted dealer, landings data will still be recorded for these species. Designation of these species as ecosystem component species provides no additional protection to these stocks. Additionally, these species are not listed under the ESA, as stated in one comment letter.

Comment 9: NMFS should ensure that the state management of the lobster fishery does not violate the ESA by strongly encouraging Florida to pursue an ESA Section 10 incidental take permit and to develop a conservation plan for the state's spiny lobster fishery.

Response: NMFS encourages states to ensure protection of threatened and endangered species, and will request affected states to enact compatible regulations for the spiny lobster fishery in state waters.

Comment 10: The AM implemented through this rule will not hold the fishery within its ACL.

Response: The AM is to have an ACT that is 90 percent of the ACL. The Councils determined an ACT that is 10 percent lower than the ACL would provide an adequate buffer between the target level of harvest and the annual limit on harvest. An overage of the ACT would trigger the Councils to convene a review panel to assess whether or not corrective action is needed to prevent the ACL from being exceeded. It is unlikely the ACL would be exceeded based on recent landings by the fishery; however, the updated framework procedures contained within Amendment 10 will facilitate timely adjustments to potential management measures in the future. The ability to expeditiously implement framework modifications for Caribbean spiny lobster would limit any negative biological impact that could result from an ACT overage.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with Amendment 10 and the FMP subject to this rulemaking, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

NMFS prepared an IRFA for the proposed rule that described the economic impact of the rule. As described in the IRFA, only the action addressing the possession and landing of tailed lobsters in or from the EEZ was expected to have any adverse economic effect on small entities, specifically for-hire vessels. Although the economic effects of this action could not be quantified because of an absence of data, the analysis concluded that because the majority of for-hire vessels are not expected to engage in the practice of landing tailed lobsters, or depend on extended trips on which tailing may be the more practical alternative for a significant portion of their revenues, this action would not be expected to affect a substantial number of entities in the for-hire fleet. As a result, the IRFA concluded that the actions in this rule would not be expected to significantly reduce profits for a substantial number of small entities. Because of the absence of data, however, public comment was requested on this determination and a certification was not prepared. No comments were received regarding the determination. Therefore, the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this action will 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. As a result, a final regulatory flexibility analysis was not required and none was prepared.

For the reasons set out in the preamble, 50 CFR parts 622 and 640 are amended as follows:

Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Atlantic Tunas Convention Act (ATCA). Under the MSA, NMFS must ensure consistency with 10 National Standards and manage fisheries to maintain optimum yield, rebuild overfished fisheries, and prevent overfishing. Under ATCA, the Secretary of Commerce is required to promulgate regulations, as necessary and appropriate, to implement measures adopted by the International Commission for the Conservation of Atlantic Tunas (ICCAT). The implementing regulations for Atlantic HMS are at 50 CFR part 635.

Prior to January 2008, NMFS approved for use several MTU Vessel Monitoring System (VMS) units for use in fisheries nationwide, including the HMS fishery (68 FR 11534; March 11, 2003). On January 31, 2008, NMFS published in the Federal Register (73 FR 5813) a type approval notice listing the specifications for approved MTU VMS, including a requirement for two-way communication. In that notice, NMFS stated that “[p]reviously installed MTUs approved under prior notices will continue to be approved for the remainder of their service life” and that new installations “must comply with all of the requirements” of the notice, including the requirement to have two-way communication capability.

On June 21, 2011, NMFS published a proposed rule (76 FR 36071) to require replacement of currently required Mobile Transmitting Unit (MTU) Vessel Monitoring System (VMS) units with Enhanced Mobile Transmitting Unit (E-MTU) VMS units in Atlantic HMS fisheries; implement a declaration system that requires vessels to declare target fishery and gear type(s) possessed on board; and require that a qualified marine electrician install all E-MTU VMS units.

NMFS considered two alternatives in the proposed rule. Alternative One, the no action alternative, would maintain the existing VMS requirements in Atlantic HMS fisheries. Under Alternative Two, vessels in the HMS fishery with an MTU (as opposed to an E-MTU) installed would not be allowed to wait until the end of the installed MTU's service life (as had been provided for in the January 31, 2008, Federal Register notice (73 FR 5813)) but instead, would be required to replace the MTU with a NMFS type approved E-MTU and to have the new unit installed by a qualified marine electrician. This alternative would also implement a fishery declaration system where vessels would declare their target species and gear type(s) possessed onboard, as well as require vessels to provide advanced notice of departure and landing. Vessels with type approved E-MTU units already installed would not need to take any action. The proposed rule contained details regarding the alternatives considered and a brief summary of the recent management history. Those details are not repeated here.

This final rule finalizes the provisions proposed in the June 21, 2011, rule. The purpose of this final action is to facilitate enhanced communication with HMS vessels at sea, provide HMS fishery participants with a means of sending and receiving information at sea, ensure that HMS VMS units are consistent with the current VMS technology and type approval requirements that apply to newly installed units, and to provide NMFS enforcement with additional information describing gear onboard and target species.

As of January 1, 2012, all E-MTU VMS units must be installed by a qualified marine electrician. This is to ensure that E-MTU VMS units are installed properly.

As of March 1, 2012, vessel owners and/or operators must have an E-MTU VMS unit installed on their vessel and must use the unit to provide position reports, declare target species and fishing gear possessed onboard two hours prior to departing on a fishing trip, and provide notification of landing three hours in advance of returning to port. The March 1, 2012, effective date provides about 90 days to have E-MTU VMS units installed and operational. NMFS extended the standard 30-day delay in effectiveness here to provide sufficient time for coming into compliance with the E-MTU VMS requirements while still providing an opportunity to take advantage of reimbursement funds.

Under the requirements of this final rule, VMS units that are approved by NMFS as meeting the E-MTU type approval specifications (73 FR 5813; January 31, 2008), including two-way communication and the ability to send and receive free-form Internet email text messages and electronic forms, will meet the requirements of this rule. Further, VMS units that were approved by NMFS prior to January 2008, but that comply with all of the requirements of the E-MTU type approval specifications notice (73 FR 5813; January 31, 2008), including two-way communication and the ability to send and receive free-form Internet email text messages and electronic forms, will meet the requirements of this rule. See ADDRESSES above for information about viewing or obtaining a list of E-MTU VMS units that are currently type approved for use in Atlantic HMS fisheries. With this final rule, three MTU VMS units approved by NMFS prior to January 2008 for use in the HMS fishery—Trimble Galaxy 7001 and 7005 and Thrane & Thrane Sailor VMS Silver (68 FR 11534; March 11, 2003)—will not meet the requirements of this rule because these units do not possess the capability for two-way communications or the ability to send and receive free-form Internet email text messages and electronic forms. Vessels with one of these three units installed will be required to replace the unit with one of the approved E-MTUs by March 1, 2012.

NMFS received four written and numerous verbal comments from non-governmental organizations, fishermen, and other interested parties on the proposed rule. NMFS heard comments from constituents at five public hearings. A summary of the comments received on the proposed rule during the public comment period is provided below with NMFS' response. All written comments submitted during the comment period can be found at http://www.regulations.gov/ by searching for RIN 0648-BA64.

Comment 1: The replacement of MTUs with E-MTUs will enhance enforcement by requiring the best available technologies for tracking and communicating with fishing vessels.

Response: Requiring that vessels use E-MTUs to provide information on the type of gear possessed onboard and the target species will provide valuable information to NMFS enforcement. This information will aid in determining which time/area closures and other regulations apply to a given vessel on a given trip and will reduce the need to send enforcement vessels or aircraft to discern an individual vessel's activity. Coupled with the hourly location reports and the ability to engage in two-way communication with vessels, E-MTU VMS will be a useful tool to track and communicate with vessels.

Comment 2: The proposed rule does not demonstrate a compelling need for requiring E-MTUs in the PLL fishery. E-MTUs are not needed as a safety tool because vessels already have electronic emergency communication equipment and MTUs already have the capability of sending distress messages. In contrast, NMFS also heard that the use of E-MTUs can increase safety and provide a way for owners to monitor what their boats are doing on the water.

Response: E-MTUs are needed to have reliable, enhanced communication with HMS vessels at sea, provide HMS fishery participants with a means of sending and receiving information at sea, ensure that all HMS VMS units are consistent with the current VMS technology and type approval requirements that apply to newly installed units, and provide NMFS enforcement with additional information describing gear onboard and target species onboard to support fishery management measures including compliance with time/area closures. Furthermore, one of the issues with existing MTU VMS units is their elevated “failure” rates. The two-way communication capability and improved reliability of E-MTUs provide the added benefits of being capable of sending distress messages and/or providing context and additional information prior to sending a distress message. Additionally, the new E-MTU units provide a way for the vessel owner and/or operator to determine if the unit is working; the previously required MTU VMS units did not have this functionality.

The E-MTU VMS units are not intended as a replacement for existing electronic emergency communication equipment, such as Emergency Position Indicating Radio Beacons (EPIRBs) or other emergency equipment that have the capability of sending a distress message. While some of the existing MTUs have the capability of sending distress messages, most do not have this capability. The ability to engage in two-way communication between vessel owners on shore and their operators at sea could facilitate troubleshooting mechanical issues, allow updates on market conditions/prices for seafood products, and could provide owners with additional peace of mind.

Comment 3: The proposed rule does not demonstrate a need for vessels to declare the target fishery and gears possessed onboard, and NMFS should not require these declarations because they are unnecessary and redundant with other reporting requirements.

Response: In HMS fisheries, many of the management measures, including closed areas, are applicable to certain gear types and some only apply at certain times of year. Providing a declaration that includes the gear possessed onboard prior to embarking on a fishing trip is useful for NMFS enforcement officials when they are evaluating which management measures apply to a particular vessel during a particular trip.

Comment 4: The need for requiring E-MTUs in the PLL fishery does not justify the financial expense and burden that the requirement will have on fishermen.

Response: The enhanced communication capability of E-MTUs will facilitate enhanced communication with HMS vessels at sea, provide HMS fishery participants with a means of sending and receiving information at sea, ensure that all HMS VMS units are consistent with the current VMS technology and type approval requirements that apply to newly installed units, and to provide NMFS enforcement with additional information describing gear onboard and target species onboard to support fishery management measures including compliance with time/area closures.

Fishing vessels possessing pelagic longline gear onboard are already required to have a functioning VMS onboard. Older MTUs are not supported by the current NMFS VMS type requirements, thus when units are replaced, they must be replaced with E-MTUs regardless of this final rule. Experience using E-MTU VMS units in other fisheries indicates that they require less maintenance than MTU VMS units. Installing the E-MTU VMS units may reduce maintenance costs and lost fishing time because of system failure compared to MTU VMS units.

Currently, the Agency has reimbursement funds available that vessel owners may receive to offset the costs of purchasing an E-MTU VMS unit. Reimbursement funds are subject to availability. The additional cost of two-way reporting and installation of E-MTUs by a qualified marine electrician on average is expected to equal $745/vessel (including $400 for installation) in the first year. Installation costs will vary depending on proximity to a qualified marine electrician. Estimates for transmission costs (declaration and location reports) represent the maximum financial burden that could be incurred by vessels because it is based on the maximum amount of fishing time vessels could be active. However, vessels often fish less frequently depending on seasons, fish availability, moon phase, and opportunities in other fisheries so actual costs may be less. The Agency is mitigating the economic impacts to participants by making some reimbursement funds available for E-MTU units and by delaying the implementation date to provide fishermen with additional time to comply with the requirements. Vessel owners that participate in other fisheries deploying the same fishing gear may already be required to use E-MTU VMS; therefore, the economic impacts to some participants may be negligible.

Comment 5: The requirement to use E-MTUs in the PLL fishery disadvantages U.S. fishermen compared to foreign competitors. The cumulative effect of this and other regulations on the PLL fishery will result in a bankrupt fishery.

Response: VMS requirements are currently in place in many U.S. fisheries and are also required by Regional Fisheries Management Organizations. In the United States, requirements to use VMS for PLL vessels were implemented in response to requirements of other domestic laws, including the MSA, Endangered Species Act (ESA), and the Marine Mammal Protection Act (MMPA). In addition, ICCAT has a VMS requirement for contracting parties. The Agency is reducing the economic impacts of this rule on fishermen by delaying the implementation date and by providing some reimbursement funds for the E-MTU units.

Comment 6: Civil liberties are violated by mandating the use of vessel tracking devices and requiring a separate line of communication using E-MTUs only compounds that violation.

Response: VMS units are required only of people who have sought out an HMS permit, the possession and use of which comes with certain obligations and responsibilities under law. Maintaining a valid HMS permit requires vessel owners and operators to comply with all applicable regulations for participation in HMS fisheries. VMS units are a tool to ensure compliance with regulations in HMS fisheries and have been required since 2003. The position and certain other data collected from VMS are subject to MSA confidentiality provisions and protections, which prevent inappropriate disclosure ( see 18 U.S.C. 1881a(b)). VMS requirements are currently in place in many U.S. fisheries and are also required by Regional Fisheries Management Organizations.

Comment 7: Some small vessels may not have enough room to mount an E-MTU.

Response: The Agency is aware of this issue, particularly for shark vessels fishing with bottom longline or gillnet gear that are subject to VMS requirements. There are several models of E-MTU VMS units available that range in size, some of which are quite small. Often the largest or most bulky part of the E-MTU VMS system is the screen or messaging terminal; however, this depends on the model. It may be possible to find a screen that is smaller in size and may be more appropriate for mounting on smaller vessels.

Comment 8: NMFS should allow the declaration of target species and fishing gears possessed to be made by phone. Some small fishing vessels remain within cell phone range throughout their fishing trip. Allowing declaration by phone could remove the need for E-MTUs for these vessels and could result in less additional burden than requiring E-MTUs.

Response: E-MTU VMS terminals represent a more reliable means of communication than cellular phones because they use satellites rather than cell towers as the principle means of transmitting data. Furthermore, vessels need to provide position reports every hour when they are away from port, and cell phones cannot consistently provide that capability. The E-MTU VMS units represent a more reliable means of providing position reports and also allow two-way communication in the event that NMFS enforcement needs to contact a vessel concerning an emergency closure, adverse weather, or other issue.

Comment 9: Gulf of Mexico reef fish vessels are already using E-MTUs; however, the Boatracs model is not authorized for use in HMS fisheries. Will vessels that also have shark permits need to replace these units? If so, the small businesses that own these vessels may have difficulty purchasing an additional E-MTU.

Response: NMFS administers a process for updating E-MTU type approval for specific fisheries. NMFS is investigating the possibility of Boatracs E-MTUs meeting NMFS type approval for Atlantic HMS fisheries. The Agency will provide updates regarding additional units being added to the list of type approved devices as necessary.

Comment 10: Will Gulf of Mexico vessels that have already been reimbursed for an E-MTU that is not type approved for Atlantic HMS fisheries be eligible for reimbursement when an E-MTU required for participation in Atlantic HMS fisheries is installed?

Response: Vessels currently are eligible to receive reimbursement for the costs of an E-MTU that satisfies the type approval requirements for the fishery. Some E-MTUs that are type approved for use in non-HMS Gulf of Mexico fisheries are also type approved for Atlantic HMS fisheries. Generally, the owner of a vessel is only eligible for reimbursement for one E-MTU per vessel. Vessel owners should contact NMFS enforcement if they have questions about VMS installation and reimbursement procedures.

Comment 11: The use of E-MTUs can increase safety and provide a way for owners to monitor what their boats are doing on the water.

Response: NMFS agrees for reasons outlined in the response to comment number 2 above, but reiterates that the E-MTU VMS units are not intended as a replacement for Emergency Position Indicating Radio Beacons (EPIRBs) or other emergency equipment that have the capability of sending a distress message.

Comment 12: NMFS should not have reporting requirements beyond those required by ICCAT.

Response: NMFS implements VMS requirements pursuant to federal laws, including the MSA, ESA, and MMPA, and also taking into consideration relevant ICCAT recommendations.

Comment 13: NMFS is displaying favoritism by requiring E-MTUs for the purpose of increasing safety if they do not implement similar requirements across all Atlantic HMS fisheries.

Response: NMFS is not requiring E-MTUs solely to increase safety. The purpose of this final rule is to enhance communication capability in the Atlantic HMS fisheries that are currently required to use VMS. When a vessel declares the type of gear possessed onboard and target species, useful information is provided to NMFS enforcement, which enables enforcement to determine which regulations apply. Other potential benefits of using E-MTU VMS at sea instead of MTUs include improved reliability, reduced maintenance costs, and two-way communication (email messages) if a vessel were experiencing conditions that may endanger the safety of the vessel or the crew during fishing activities. E-MTU VMS units are not intended to replace EPIRBs or other safety equipment that can be used to transmit a distress signal and vessel position information.

Comment 14: An upgrade to E-MTUs should only be required if the MTU on a vessel is old.

Response: E-MTUs provide enhanced communication that will support fishery management measures. When vessels declare the fishing gear onboard and target species using an E-MTU, NMFS enforcement officials will know which regulations apply to that particular vessel during that particular trip. MTUs do not provide this type of enhanced communication and are only capable of providing position information. The E-MTU VMS units also provide vessel operators with confirmation that the unit is functioning properly, which was not always possible with MTU VMS units.

Comment 15: The enhanced units have a level of complexity far exceeding the old systems. This may result in an increased rate of system failure. When E-MTUs fail, the cost of shipping them to service agents has been an economic and logistical burden. The lost fishing time while waiting for repairs has been costly.

Response: NMFS has not experienced increased system failures with the E-MTUs that are currently type approved in other fisheries. Rather, NMFS enforcement reports that the rate of system failure is less than that of MTUs. NMFS expects that there will be a reduction in lost fishing time as a result of system failure at port or at sea by requiring that E-MTU VMS units be installed by a qualified marine electrician in HMS fisheries.

Comment 16: NMFS should require vessels in the Atlantic HMS fleet to declare their target fishery and gear two hours before leaving port and provide three hours of advanced notice of landing.

Response: NMFS agrees. Requiring the declaration of fishing gear possessed and target species facilitates enforcement and monitoring by allowing NMFS enforcement to know what fisheries regulations, such as closed areas, apply for the vessel during a given fishing trip. The final rule will require that vessels declare target species and fishing gear onboard two hours prior to leaving port and notify the Agency of their intended landing location three hours prior to returning to port.

Comment 17: Fishermen cannot declare their target catch two hours in advance of their fishing trip because they do not know what they are going to catch ahead of time. It should be sufficient that NMFS knows HMS are generally targeted by a PLL vessel that is permitted in Atlantic HMS fisheries when the vessel departs on a fishing trip. This basic information is known by the VMS track provided by a MTU.

Response: It is the Agency's intention for vessel operators to declare the type of fishing gear possessed and target catch by species groups to facilitate the effectiveness of fishery management measures through improved enforcement efforts. The Agency realizes that fishing is opportunistic and it may not be possible to list all species that may be encountered and retained on any particular trip. There may be instances where the vessel possesses multiple gear types and would target (and declare) multiple species groups, which would be acceptable. The E-MTU VMS units have the capability to report all of this information. This information will augment the location information provided by VMS units to discern which fisheries regulations are applicable.

Comment 18: It is not practical for fishing vessels that make trips less than three hours in length to hail in three hours in advance of landing.

Response: The hail-in requirement is necessary to facilitate enforcement of fishery regulations by providing adequate time for an enforcement agent to meet a vessel at the dock. Vessels that anticipate a fishing trip less than three hours in length must, prior to departure, provide a hail-in declaration stating where they intend to return to port at least three hours in advance of landing. If the vessel's fishing trip deviates from the original declaration, then a subsequent hail-in message can be sent using the E-MTU unit.

Comment 19: NMFS should keep the amount of required text characters in a message to a minimum because of the expense of these messages.

Response: NMFS anticipates that text messages will be minimal in length. Most, if not all communications, will occur via electronic forms that are filled with the use of inexpensive drop-down menus. Costs for transmitting information using the E-MTU are minimal and are approximately $0.06 per message (both sent and received). Messaging cost varies slightly by service provider.

Comment 20: If NMFS requires hail-in notification, any confirmation from NMFS back to the vessel needs to occur quickly. NMFS should not expect boats to sit at idle while waiting for a confirmation code before they can tie up to the dock. This situation currently occurs in southeast reef fish fisheries.

Response: This final rule does not require that vessels obtain a hail-in confirmation number from NMFS prior to landing and the vTrack system does not contain a mechanism to send back a specific confirmation number. Rather, vessels will receive an on-screen confirmation from the vendor that the prelanding notice was successfully transmitted, which should occur without delay.

Comment 21: NMFS should allow changes to the declaration because fishermen sometimes have incidental catches of species not listed on their initial declaration.

Response: Declaration of target species will be for species groups and is not intended to capture all species that a vessel lands. If the vessel switches to a gear type or species group not reported on the initial declaration, another declaration must be submitted before fishing begins.

Comment 22: Requiring vessel owners to outlay the cost of an E-MTU (up to $3,100) before the money is reimbursed is a real hardship.

Response: NMFS understands that the initial outlay of the cost of an E-MTU and installation by a qualified marine electrician is burdensome for fishermen. In order to mitigate the economic impacts, NMFS is delaying implementation of the requirement to purchase and install an E-MTU until March 1, 2012, in order to provide time for fishermen to save for this initial outlay of money.

Comment 23: The allowable reimbursement amount of $3,100 is not enough money to reimburse fishermen fully for the total cost of this requirement. NMFS should make reimbursement funds available for any fees incurred by breaking existing contracts.

Response: The reimbursement amount of up to $3,100 should cover the cost of the least expensive E-MTU that meets the NMFS type approval. All of the costs associated with existing MTU units were incurred by PLL fishermen. Consistent with existing policy, NMFS will not pay for installation or any subsequent transmission costs. Reimbursement of the cost of an E-MTU will help fishermen with the rule's financial burden. Reimbursement is not available to cover any cost related to changes to contracts incurred by vessels transitioning to E-MTU VMS. NMFS is not aware of any fees being incurred by participants as a result of switching from MTU to E-MTU VMS units.

Comment 24: NMFS should ensure that sufficient funding is available to reimburse all eligible fishery participants for an E-MTU.

Response: Reimbursement funds are available on a first-come, first-served basis as long as the funds last. In recent years, the reimbursement fund has been adequately funded to cover all eligible requests; however, this funding level is not guaranteed.

Comment 25: NMFS should make the rule effective at a time when fishing activity is slowest so the burden on fishermen is the least.

Response: This final rule is expected to publish and be implemented during the winter of 2012, which coincides with a period of reduced fishing activity for most Atlantic HMS fisheries affected by the regulation.

Comment 26: NMFS should allow up to 6-months for a phased-in period of implementation. Delayed implementation of the E-MTU requirement would ease the economic burden by allowing fishermen more time to save money for the unit and could prevent manufacturer's inventories of E-MTUs from becoming depleted and the filling of orders from being delayed. Delayed implementation would also allow existing MTU service contracts to expire.

Response: NMFS is issuing this final rule with a delayed effective date of about 90-days in order to minimize the financial burden to fishermen as a result of compliance with the new regulation. The selected delayed effective dates coincide with a period of reduced fishing activity for many HMS participants affected by the new requirement. A delayed effective date balances the need for fishermen to save money for the initial outlay to procure the unit with the need to expedite the requirement so fishermen are ensured access to the reimbursement. A 6-month phase in period, as suggested by the public comment, would increase the likelihood that reimbursement funds are not available to fishermen, thus was not chosen. The delayed implementation date would also allow vendors of type approved E-MTUs to ensure they have an adequate supply of units in stock. NMFS has contacted vendors of type approved E-MTUs and an adequate supply exists for Atlantic HMS participants affected by this requirement.

Comment 27: Installation by a qualified marine electrician will minimize the chance of equipment failure at sea.

Response: NMFS agrees. One purpose of requiring installation by a qualified marine electrician is to ensure the reliability of E-MTUs and the information they provide to NMFS.

Comment 28: It is difficult to believe that self-installation has been a frequent cause of VMS unit failure instead of mechanical malfunction of the unit.

Response: NMFS enforcement has documented instances of VMS unit failure due to improper installation by an unqualified person. Not all persons associated with a vessel that might install an E-MTU are familiar with the specific electronic and mechanical requirements of E-MTU installation. Installation of E-MTUs by a qualified marine electrician is necessary to ensure the units function properly. Units that fail at sea may impact fishing activities and result in lost revenues because vessels may need to return to port during a fishing trip to deal with VMS issues.

Comment 29: Requiring that the enhanced units be installed by a qualified marine electrician is not practical because there are a limited number of qualified marine electricians with experience installing E-MTUs and because of the long distance that a qualified marine electrician would have to travel in some areas. The cost of travel for the installer will be more than the $200.00 estimated in the proposed rule. NMFS should consider having VMS units installed by a capable, but unspecified, technician.

Response: By requiring E-MTU installation by a qualified marine electrician, NMFS intends to provide some flexibility for fishermen in choosing a business that is relatively convenient while ensuring that it is someone qualified to install E-MTU VMS units. It is important that someone familiar with these units and marine electronics complete the installation and fill out the VMS installation checklist because the checklist provides NMFS enforcement with important information concerning the installation and results in improved troubleshooting capability should problems occur. NMFS revised the estimate for an average E-MTU installation by a qualified marine electrician to $400.00 instead of $200.00, which was originally analyzed in the Initial Regulatory Flexibility Analysis and proposed rule based on public comment.

Comment 30: Fishermen should not be held responsible for any VMS equipment failure because of the complexity of the units.

Response: NMFS disagrees. Fishermen that are required to use VMS are responsible for ensuring that their units are functioning properly during fishing activities just as they would be for any other fishing equipment on their vessels. Because of the complexity of the units and the problems that may occur subsequent to installation by an inexperienced person, NMFS is requiring that E-MTU units be installed by a qualified marine electrician.

Comment 31: NMFS should not increase use of electronics to enforce regulations.

Response: Enforcement of fisheries regulations using electronic tools such as VMS is a proven, cost effective method. The requirements of this final rule will enhance communication between fishing vessels and NMFS to strengthen VMS as an enforcement tool with benefits to both NMFS, through improved data availability, and fishermen, through increased reliability and increased ability to communicate with enforcement, thereby avoiding compliance issues. The enhanced reliability and two-way communication capabilities of E-MTU VMS may also be an effective tool for improving safety at sea because communication between fishing vessels and NMFS enforcement/and Coast Guard (describing the vessels' circumstances) can be initiated prior to the need to send a distress signal. However, E-MTU VMS units are not intended as a replacement for Emergency Position Indicating Radio Beacons (EPIRBs) or other emergency equipment that have the capability of sending a distress message.

Comment 32: VMS equipment is not made for boats and regularly fails at sea.

Response: The E-MTU units that are type approved for use in Atlantic HMS fisheries are designed and marketed exclusively for use in the marine environment. VMS has proven to be an effective tool for monitoring vessel position and two-way communication. VMS is used in many other federally managed fisheries in the United States and throughout the world. NMFS enforcement has documented numerous instances where the MTU VMS currently being used in HMS fisheries have failed at sea. The E-MTU units themselves have demonstrated that they are more reliable at sea than the MTU units. Furthermore, requiring that installation is conducted by a qualified marine electrician is also expected to improve performance.

Comment 33: Who is authorized to repair E-MTUs? Nearly all of the type approved units are manufactured abroad (Norway, Denmark, and Canada). Will fishermen be burdened by having to get their E-MTUs serviced at foreign locations?

Response: Specific information concerning E-MTU service and repair should be attained through the authorized dealer from which the original unit was purchased. The location and availability of service and repair companies varies by VMS manufacturer; however, the experience in other federally managed fisheries is that some units can be repaired by technicians within the United States without the need to send units to foreign locations. In some cases, E-MTUs may have software repairs conducted remotely via two-way communication, which can reduce cost and repair time. The Agency is preparing a compliance guide that will provide additional information on the locations of authorized dealers and service providers.

Comment 34: NMFS needs to re-examine the rationale for prohibiting fishing when a vessel's VMS unit is not working and the vessel is far from a closed area.

Response: A properly operating VMS is required and necessary to verify the location of a vessel, regardless of its location, to ensure that it is not fishing in closed areas.

Comment 35: NMFS should expand this rule to implement reporting requirements, observer coverage, increased enforcement, and VMS requirements in the Atlantic Tunas General category fishery commensurate with requirements and level of enforcement in the PLL fishery.

Response: Regulations are in place for the Atlantic Tunas General permit fishery including, but not limited to, permitting, authorized gears, retention and size limits, and reporting requirements. In the Gulf of Mexico, Atlantic Tunas General permit holders cannot engage in directed fishing for bluefin tuna and possession of bluefin tuna is not authorized. Therefore, NMFS determined that additional requirements for Atlantic Tunas General Category permitted vessels within the scope of this final rule are not necessary at this time.

Comment 36: ICCAT recommendations require VMS on vessels greater than 24 m Length Overall (LOA), yet NMFS requires VMS on vessels according to the gear they possess and not vessel length. Implementing VMS requirements in this way excludes the largest percentage of U.S. Atlantic HMS vessels and selectively enforces ICCAT VMS requirements on a small percentage of commercial HMS permit holders.

Response: VMS requirements, implemented under the authority of the MSA, facilitate enforcement of closed areas in the U.S. EEZ for certain gear types (PLL, BLL, and gillnet) at certain times of year (specific to gear type and location). These closed areas apply to vessels in possession of a certain gear type regardless of the vessel size or length. NMFS may consider additional monitoring requirements for Atlantic HMS fisheries in the future.

Comment 37: NMFS should require E-MTUs to be used by Atlantic HMS-permitted vessels that use gears other than PLL, BLL, and gillnet so that two-way communications and the ability for real-time reporting of landings will be in place throughout Atlantic HMS fisheries.

Response: NMFS is considering alternative methods for improving the timeliness and quality of information collected throughout Atlantic HMS fisheries.

Comment 38: In order to increase safety at sea, NMFS should allow PLL vessels to fish in closed areas along the east coast during winter months when sea conditions make fishing farther from shore more dangerous. NMFS should also make the PLL closed areas smaller so that they are easier to enforce.

Response: This comment is not germane to this rulemaking. However, NMFS continues to evaluate the effectiveness of time/area closures and their impacts, and may make changes, if appropriate.

Comment 39: NMFS should consider using E-MTUs in lieu of observer coverage in order to get better scientific data.

Response: VMS units and observers are both important tools in fisheries management; however, they provide different information to fishery managers and enforcement officials. VMS units are primarily an enforcement tool and provide important information about location and allow self-reported fisheries data from vessels to fisheries enforcement officers. Observers are not used for enforcement of fisheries regulations; rather, they provide valuable information about catch, discards, effort, and fishing gear (among other things) to fisheries managers. NMFS may consider options for using E-MTU VMS to report landings or discards in a future rulemaking.

Comment 40: NMFS should not have comment periods shorter than 60 days, with the exception of emergency actions, to allow fishermen ample time to participate in the regulatory process.

Response: NMFS strives to provide adequate time for fishermen to provide public comments consistent with legal obligations. Public hearings are scheduled at locations that are designed to be accessible to members of the public, including fishermen, who are interested in the subject matter. Comments may be submitted in person at public hearings, electronically via http://www.regulations.gov, via fax, or by mail.

Comment 41: NMFS should reduce the frequency of VMS reports from 24 to no more than six per day.

Response: The current frequency of VMS reports (1 per hour) has been implemented to monitor closed or gear-restricted areas. The required frequency is necessary to provide NMFS enforcement with enough information to substantiate what fishing gear is being used based on vessel track, location of the fishing gear, and location of the vessel in relation to closed areas. If the frequency of reporting is reduced, then it may limit NMFS enforcement's ability to monitor fishing activities adjacent to closed areas, thus compromising the effectiveness of closed areas.

The estimates of costs associated with installation of E-MTU VMS units increased from $200 to $400 based on public comment on the Initial Regulatory Flexibility Analysis. A minor change to the paragraph at § 635.69(a) has been made to better describe what a NMFS-approved E-MTU VMS is and to reference the type approval requirements that were published in the Federal Register. A minor change to the paragraph at § 635.69 (a) has been made to clarify the implementation dates of this final rule.

The NMFS AA has determined that this final action is consistent with the Magnuson-Stevens Act, 2006 Consolidated Atlantic HMS FMP and its amendments, ATCA, and other applicable law.

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

This final rule would modify a collection-of-information requirement associated with VMS use in Atlantic HMS fisheries subject to the Paperwork Reduction Act (PRA), and that has been approved by the Office of Management and Budget (OMB) under control number (0648-0372). The modifications are subject to review and approval by OMB under the Paperwork Reduction Act (PRA). There would be 329 vessel owners (respondents) that may be affected by this collection. Public reporting burden for having the E-MTU VMS units installed by a qualified marine electrician (4 hours, one-time), submitting a checklist (completed by a qualified marine electrician) (5 minutes, one-time), and providing declaration reports before and after leaving port (5 minutes/declaration, ongoing) is estimated to result in an estimated total annual burden of 4,452 hours in the first year. A total of 48,358 responses (checklists and declaration reports) would be collected in the first year. The annual burden would decrease in subsequent years because the installation and submission of a completed checklist would be one-time burdens. Table 1 provides estimates of the number of participants affected by this collection and the financial burden associated with this action in year one and subsequent years.

Environmental impacts are not expected and the action is within the scope of that previously analyzed when existing VMS requirements were implemented (64 FR 29090; May 28, 1999; and 68 FR 74746; December 24, 2003). This action would not directly affect fishing effort, quotas, fishing gear, authorized species, or interactions with threatened or endangered species.

NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA), as required by 5 U.S.C. Section 604 of the Regulatory Flexibility Act, to analyze the economic impacts that this final rule will have on small entities. A description of the final action, why it is being implemented, and the legal basis for this action are contained in the preamble to this proposed rule. A summary of the analysis follows. A copy of the complete analysis is available from NMFS (see ADDRESSES ).

Section 604(a)(1) of the Regulatory Flexibility Act requires that the Agency describe the need for, and objectives, of the final rule. The purpose of this final rule is, consistent with the Magnuson-Stevens Act and the 2006 Consolidated HMS FMP and its amendments, to aid NMFS in monitoring and enforcing fisheries regulations, including those implemented at 50 CFR part 635. Specifically, this final action will facilitate enhanced communication with HMS vessels at sea, provide HMS fishery participants with a means of sending and receiving information at sea, ensure that HMS VMS units are consistent with the current VMS technology and requirements used in other U.S. VMS monitored fisheries, and to provide NMFS enforcement with additional information describing gear onboard and target species.

Section 604(a)(2) requires a summary of the significant issues raised by the public comments in response to the Initial Regulatory Flexibility Analysis (IRFA) and a statement of any changes made in the proposed rule as a result of such comments. The Agency received comments concerning the Initial Regulatory Flexibility Analysis stating that the Agency's estimate of $200 for installation of E-MTU VMS units by a qualified marine electrician was not appropriate for vessels that may be docked at remote ports far from larger population centers because of the travel time necessary for a qualified marine electrician. As a result, the estimate for installation of E-MTU VMS units by a qualified marine electrician has been increased from $200 to $400 in response to these comments. Estimates of the economic impacts of compliance with the final regulations have been updated in the FRFA and final rule.

Comments were also received on the delayed implementation date discussed in the IRFA and proposed rule. The Agency is implementing a delayed implementation date to mitigate economic impacts and provide stakeholders with some additional time to get new E-MTU units installed and operating. Commenters asked for additional time, up to six months, to comply with the new requirements and for the effective date to coincide with a period of low fishing activity. NMFS is implementing this final rule with two effective dates. As of January 1, 2012, all E-MTU VMS units must be installed by a qualified marine electrician. As of March 1, 2012, vessel owners and/or operators must have an E-MTU VMS unit installed on their vessel and must use the unit to provide position reports, declare target species and fishing gear possessed onboard two hours prior to departing on a fishing trip, and provide notification of landing three hours in advance of returning to port. The selected delayed effective dates coincide with a period of reduced fishing activity for many HMS participants affected by the new requirement. This date also balances the need for fishermen to save money for the initial costs of buying the unit with the need to expedite the requirement so fishermen are ensured access to the reimbursement. A 6-month phase in period, as suggested by the public comment, would increase the likelihood that reimbursement funds are not available to fishermen, thus was not chosen. The delayed implementation date would also allow vendors of type approved E-MTUs to ensure they have an adequate supply of units in stock.

Under section 604(a)(3), Federal agencies must provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) standards for a “small” versus “large” business entity are entities that have average annual receipts less than $4.0 million for fish-harvesting; average annual receipts less than $6.5 million for charter/party boats; 100 or fewer employees for wholesale dealers; or 500 or fewer employees for seafood processors. Under these standards, NMFS considers all HMS permit holders subject to this rulemaking to be small entities. This action would apply to all 249 participants in the Atlantic HMS pelagic PLL fishery, 50 participants in the shark bottom longline (BLL) fishery, and 30 participants in the shark gillnet fishery. These permit estimates are based on October 2010 permit data and fishery-specific assumptions to determine the potential affected universe of participants. Atlantic HMS PLL vessels are required to use VMS year-round whenever they are away from port. The number of vessels was determined by adding the number of swordfish directed (177) and incidental (72) permit holders. One of these permits is required to retain swordfish with PLL gear and the majority of swordfish fishermen with those permits use PLL gear. The estimate for BLL participants was derived by adding the number of shark incidental and directed permit holders residing in states adjacent to the Mid-Atlantic closed areas, including: Virginia (3), North Carolina (28), and South Carolina (19). The estimate for shark gillnet vessels was based on recent analysis conducted in Amendment 3 to the Consolidated Atlantic HMS FMP, which determined that there were 30 directed permit holders fishing with shark gillnet gear. All of these vessel owners are commercial fishermen and considered small entities. Depending on the fishing gear possessed on board, vessels will continue to use VMS units when away from port to provide location reports consistent with existing regulations. These vessels will also be required to declare target species and gear types possessed on board to NMFS enforcement prior to leaving port and then provide NMFS enforcement advanced notice of landing. The position reports, fishery declaration, and return reports must be sent via an E-MTU VMS unit.

Under section 604(a)(4), Federal agencies must provide a description of the projected reporting, recordkeeping, and other compliance requirements of the rule. The final action will require that the small entities (commercial fishermen) procure an approved E-MTU VMS unit and have the new units installed by a qualified marine electrician. A form describing the technical specifications of the unit will be filled out by the qualified marine electrician and then submitted to NMFS enforcement by the vessel owner. This represents a slight deviation from existing protocols for installation of VMS units. Currently, vessel owners themselves are able to complete the installation and then submit the checklist.

The E-MTU VMS units allow for two-way communication, including the ability to send and receive electronic messages. Consistent with existing regulations, fishermen would be required to send hourly location reports while they are away from port using the VMS units. Additionally, the final rule contains some new reporting and compliance requirements using the E-MTU VMS units in addition to providing location reports. Vessels will be required to send an electronic message to NMFS enforcement two hours prior to departing the dock and describe target species and what fishing gear(s) will be possessed on board the vessel. Creating a fishery declaration system will allow NMFS enforcement officials to more accurately track and monitor vessels for compliance in specific fisheries. The new declaration system will be compatible with the capabilities of newly required E-MTU VMS units. Additionally, the requirement to notify NMFS enforcement at least three hours prior to returning to port provides notification that fishing activities are being completed, and the vessel is transiting back to port.

Under section 604(a)(5), agencies are required to describe any alternatives to the rule which accomplish the stated objectives and which minimize any significant economic impacts. Economic impacts are discussed below and in the Environmental Assessment for the actions that initially established VMS requirements. Additionally, the Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4)) lists four general categories of significant alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and, (4) exemptions from coverage of the rule for small entities.

In order to meet the objectives of this final rule, consistent with the Magnuson-Stevens Act, NMFS cannot exempt small entities or change the reporting requirements only for small entities because all of the participants in Atlantic HMS fisheries are considered small entities. The requirements to have an updated E-MTU VMS unit installed by a qualified marine technician and expand reporting requirements to include a declaration system is expected to improve the reliability of VMS transmissions and provide NMFS enforcement with additional information to accurately monitor fishing activities. NMFS does not specify a particular manufacturer or model of VMS unit that vessel owners would need to procure to comply with the final action. As noted above, there are several models available that meet the specifications described in the latest type approval notice (73 FR 5813; January 31, 2008). A list of E-MTU VMS units that are currently type approved for use in Atlantic HMS fisheries is available on the NMFS Office of Law Enforcement Web site at http://www.nmfs.noaa.gov/ole/docs/2011/07/noaa_fisheries_service_type_approved_vms_units.pdf. Copies of this list and other information may be obtained by contacting the VMS Support Center at (phone) (888) 219-9228, (fax) (301) 427-0049, ole.helpdesk@noaa.gov, or write to NMFS Office for Law Enforcement, VMS Support Center, 8484 Georgia Avenue, Suite 415, Silver Spring, MD 20910.

NMFS considered two alternatives in compliance with the Regulatory Flexibility Act. Alternative one, the no action alternative, would maintain the existing VMS requirements in Atlantic HMS fisheries. Alternative two, the preferred alternative, would mandate that Atlantic HMS vessels that are required to use VMS replace their MTU VMS unit with an E-MTU VMS by March 1, 2012, and have the new unit installed by a qualified marine electrician. This alternative would also implement a fishery declaration system where vessels would declare their target species and gear type(s) possessed onboard, as well as require vessels to provide advanced notice of departure and landing. Alternative two is the preferred alternative.

Under the no action alternative, vessels that are required to use VMS would be able to continue to use the MTU VMS units currently being employed in the PLL, BLL, and gillnet fisheries or access reimbursement funds ($3,100 per VMS unit) to voluntarily replace these units with E-MTU VMS units. The decision to replace existing units with E-MTU VMS units would be at the discretion of individual vessel owners. In the event that existing units failed beyond repair, E-MTU VMS units would need to be installed, and owners would be eligible for reimbursement funds ($3,100 per VMS unit) to offset the initial costs of the unit. Costs for individual E-MTU VMS units that meet the type approval specifications start at approximately $3,100 per unit depending on the manufacturer, model, and additional features of the unit. NMFS expects that any vessel owner who applies for reimbursement funds will receive those funds; however, reimbursement funds are not guaranteed and are subject to limitations and distributed on a first-come, first-serve basis. In the event of necessary replacement, the E-MTU VMS units would need to be procured by vessel owners before returning to fishing activities, consistent with existing regulations, depending on the gear possessed onboard the vessel, timing, and location of the fishing activity. This alternative would not require that the new units be installed by a qualified marine electrician. Rather, the new units could be installed by vessel owners/operators and an installation checklist would need to be completed and sent to NMFS enforcement per existing requirements.

Under the no action alternative, vessel owners or operators would not be required to provide NMFS enforcement with information concerning target species and gear possessed on board prior to leaving port to engage in fishing activities. Furthermore, vessel owners or operators would not be required to provide NMFS enforcement with advanced notice of departure and landing. Vessels would still be required to provide hourly position reports, starting two hours before leaving port, when away from port. It is estimated that these reports would continue to cost $1.00 per day assuming 24 reports are sent. Maintenance costs for these units are estimated at $500 per vessel per year. Some vessels may be committed to long-term service contracts with communication service providers and maintaining the status quo would not require vessels to break these contracts, avoiding any early termination fees. Unlike the MTU VMS units, which could have maintenance costs of approximately $500 per year, E-MTU VMS units have very low to no maintenance costs.

Under the preferred alternative, fishery participants would be required to replace by March 1, 2012, MTU VMS units with E-MTU VMS units (including approximately 80 to 100 fishery participants that would replace MTUs with E-MTUs), however they would be able to access reimbursement funds ($3,100 per VMS unit) to offset the initial costs of the units. Reimbursement funds would be subject to limitations and distributed on a first-come, first-serve basis. Furthermore, individuals that have previously received reimbursement funds for an E-MTU VMS unit required in another fishery would not be eligible for additional funds. In the IRFA, the Agency estimated that the proposed action require that the units be installed by a qualified marine electrician ($200 per installation) to ensure that units are installed and operating properly to avoid transmission failures that may occur when vessels are away from port and subject to VMS requirements. The Agency received several public comments indicating that an estimate of $200 for installation may not be appropriate for vessels that are docked in remote ports that are far from large population centers. Therefore, the Agency has revised its estimate for installation by a qualified marine electrician from $200 to $400 consistent with public comments received. Marine electricians are also capable of providing information on E-MTU VMS use and troubleshooting during the installation process.

NMFS is also planning on delaying the implementation date in order to allow vessel owners time to procure and have an E-MTU. The Agency received comments requesting that the effective date be delayed even further, to six months after publication of the final rule. The effective date also coincides with a period of reduced fishing activity for many HMS participants affected by the new requirement. A delayed effective date balances the need for fishermen to save money for the initial outlay to procure the unit with the need to expedite the requirement so fishermen may access the reimbursement funds. The extended implementation period would also allow vendors of type approved E-MTUs to ensure they have an adequate supply of units in stock.

Costs of compliance with the preferred alternative for vessel owners are estimated to be $3,971; $3,830; $3,737 per vessel for PLL, BLL, and shark gillnet vessels, respectively, in the first year (Table 1). These are the costs of compliance, pre-reimbursement. Reimbursement funds of $3,100 per VMS unit would reduce the costs to $745 per vessel, on average, across all fisheries. Costs in year two (and beyond) would be limited to the costs of sending/receiving declaration reports ($0.06 per report) and providing vessel location information on an hourly basis ($1.56 per vessel per day) and is estimated to be $471; $331; and $237 per vessel for PLL, BLL, and shark gillnet vessels, respectively.

Table 1 summarizes some of the costs associated with the final rule. A description of the figures and calculations used in Table 1 is provided below the table.

There are benefits associated with the final action relative to the no-action alternative. Requiring that an E-MTU VMS unit be installed by a qualified marine electrician would improve the reliability of VMS data transmitted from HMS vessels. Implementing a declaration system would enhance NMFS communication with HMS vessels at sea and provide valuable information concerning target species and gear type(s) possessed onboard vessels to ensure enforcement of closed areas and other regulations. Furthermore, the delayed implementation date associated with the preferred alternative would allow more time for fishermen to make the transition to the new VMS units and a declaration system coincides with a period of low fishing activity for many HMS permit holders. NMFS solicited comment from the public regarding the implementation date and costs for installation to ensure that economic impacts are accurate. Based on public comment, the estimate for installation by a qualified marine electrician was revised to $400 to reflect costs of installation at remote ports. Vessels at these ports would expect to pay more to cover costs of having a marine electrician travel to and from these areas. One of the objectives of this final action is to modify the requirements in order to ensure that small entities affected can access the reimbursement funds and make the transition to E-MTU VMS.

The preferred alternative was selected over the no action alternative even though it was not the lowest cost alternative because it will ensure that all Atlantic HMS vessels that are required to use VMS are using a more reliable type of unit that is also capable of two-way communication (E-MTU VMS). Under the no action alternative, the regulations require that these updated units are installed only in the event of the MTU VMS units failing. Once the MTU units fail, then individual vessels would be required to install E-MTU VMS units. The preferred alternative would require that all vessels make the transition to E-MTU VMS at the same time to ensure that all vessels have the same capabilities.

The preferred alternative would also require that E-MTU VMS units are installed by a qualified marine electrician. Installation of these units can be complicated and improper installation has been responsible for VMS units failing at sea during fishing activities. Ensuring that the units are properly installed and that a qualified marine electrician provides valuable information about the unit and installation to NMFS enforcement will increase the reliability and functionality of the updated units.

One of the primary objectives of the rulemaking is to improve NMFS enforcement's ability to monitor fishing vessels and ensure compliance with fishery management measures. The preferred alternative implements a fishery declaration requirement where vessels would provide valuable information concerning fishing gear onboard and target species prior to leaving port. With this information, NMFS enforcement will know which regulations should apply to an individual vessel without having to dispatch an aircraft or enforcement vessel to board a fishing vessel to discern its activities.

This final action does not contain regulatory provisions with federalism implications sufficient to warrant preparation of a Federalism Assessment under E.O. 13132.

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. Copies of the compliance guide for this final rule are available (see ADDRESSES ).

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