The Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM) in the Federal Register, July 6, 2011, 76 FR 39315, proposing to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. The system of records is titled, “DHS/ALL-030 Use of the Terrorist Screening Database System of Records.” The DHS/ALL-030 Use of the Terrorist Screening Database system of records notice (SORN) was published concurrently in the Federal Register, July 6, 2011, 76 FR 39408, and comments were invited on both the NPRM and SORN.

DHS received a total of two comments, one on the NPRM and one that addressed both the NPRM and the SORN.

DHS received two comments on the NPRM. One of the comments on the NPRM also included comments on the SORN. That comment will be addressed in its entirety under SORN below. The one comment exclusively on the NPRM was from a private individual. The individual raised a series of philosophical questions regarding the policy behind homeland security issues that were unrelated to this proposed rulemaking. The individual also mentioned several times that this is a “new database.” This is not a new database. The system of records addressed by this NPRM and the accompanying SORN represents a mirror copy of the Department of Justice (DOJ)/Federal Bureau of Investigation (FBI)-019 Terrorist Screening Records System of Records (August 22, 2007, 72 FR 47073). The same rules outlined in the DOJ/FBI-019 Terrorist Screening Records System of Records (August 22, 2007, 72 FR 47073) transfer and apply. The individual goes on to discuss the historical relevance of the Terrorist Screening Database and outlines the positives and negatives of the system. The individual also raises concerns about the security of the system. The DHS mirrored copy of the system will receive the same security and protection as it does at the FBI and Terrorist Screening Center (TSC). The individual also speculates that, as a matter of fiscal priority, the system could be subject to less funding over time based on priorities. The system will meet the same requirements at DHS as it does at FBI/TSC. The individual concludes the general comments by saying the benefits outweigh the risks. On Privacy Act exemptions, the individual states that the proposed rule was nicely drafted. The individual asks the question of who will make the determination on when an exemption will be applied. In response to that question, that determination will be made by DHS privacy or disclosure staff in consultation with counsel. If the exemption is applied and an appeal is necessary, individuals may appeal the decision. That process can be found at www.dhs.gov/foia. The individual expresses appreciation for the Department's decision to consider requests on a case-by-case basis when applying exemptions. The individual states that the system should be implemented and that it be a model for other agencies.

DHS received one comment on the SORN from a public interest research center that was joined in filing its comments by seventeen other privacy, consumer rights, and civil rights organizations. The comment addressed both the NPRM and SORN jointly and is addressed in this section. The authors start by stating that DHS should “suspend the proposal pending a full review of the privacy, security, and legal implications of the program, including compliance with the Federal Privacy Act.” The NPRM and SORN received internal coordination and clearance by program and compliance officials, including, but not limited to, the Office of General Counsel and the Chief Privacy Officer. The organizations further stated that “if the agency (DHS) proceeds with the Watch List System (WLS) program, the system must, at a minimum: (1) Adhere to Congress's intent to maintain transparent and secure government recordkeeping systems; (2) provide individuals judicially enforceable rights of notice, access, and correction; (3) conform to a revised SORN and NPRM that includes requirements for the agency (DHS) to respect individuals' rights to control their information in possession of Federal agencies, as the Privacy Act requires; and (4) premise its technological and security approach on decentralization.” With respect to these points, the Department follows the complete privacy legal framework as well as additional privacy policy it has put in place. The organizations go on to state that the Department is intentionally circumventing a number of provisions under the Privacy Act as well as the intent of the Privacy Act. As noted above, the NPRM and SORN received internal coordination and clearance by program and compliance officials, including, but not limited to, the Office of General Counsel and the Chief Privacy Officer. This addresses the author's points covering “meaningful privacy protections Congress established in the Privacy Act.” The fact that Privacy Act exemptions are taken within this system of records, and explained within the NPRM, does not mean that the act is illegal or outside of the intent of Congress. The exemptions are contemplated by the Privacy Act and the Department implemented them consistent with that statute. The Department maintains that, for a variety of national security and law enforcement purposes, the exemptions taken within the system of records, and outlined in the NRPM, are necessary and are unchanged. The organizations go on to refute the Privacy Act exemptions claimed and recommend changing the way the Department does business including the way it conducts investigations. The organizations recommend that the Department void the claimed exemptions. The Department maintains that, for national security and law enforcement purposes, the exemptions taken within the system of records, and outlined in the NRPM, are necessary and remain in place. The organizations also go on to cite concerns regarding privacy risks contemplated in previously published Privacy Impact Assessments (PIAs) where the Terrorist Screening Database (TSDB) is used. In response, the Department emphasizes that this is not a new database. This NPRM and SORN represent a mirror copy of the DOJ/FBI-019 Terrorist Screening Records System of Records (August 22, 2007, 72 FR 47073). The same rules outlined in the FBI SORN transfer and apply. The Department has taken additional steps to further ensure privacy protections by conducting appropriate privacy analysis through a published PIA as well as SORN. Doing so provides additional transparency on the risks, mitigations, and privacy rules associated with maintaining a mirror copy of the TSDB.

After consideration of public comments and reviewing the NPRM, the Department determined it did not require exemptions to subsections (e)(12) or (h) of the Privacy Act. Thus, the Department has removed proposed paragraphs (i) and (k) from the Final Rule. No additional changes were made.

For the reasons stated in the preamble, DHS amends Chapter I of Title 6, Code of Federal Regulations, as follows:

On a Hawker Beechcraft Corporation Model 58 airplane, we found that STC SA1762SO (installation of vortex generators) and STC SA4016NM (Foxstar Baron modification that included installation of winglets and different engines and propellers) were installed. The airplane flight manual (AFM) supplements for both STCs contained different V MC limitations. The airspeed indicator was marked in accordance with STC SA4016NM when it should have been marked with the higher V MC specified for STC SA1762SO.

Other affected Hawker Beechcraft Corporation airplanes with STC SA1762SO installed may have other STCs or modifications installed that affect V MC . Those modified airplanes may not have V MC accurately marked on the airspeed indicator(s). Whenever an STC is installed, the relationship between the STC being installed and other STCs already installed on the airplane should be properly analyzed to assure there are no adverse effects on the airworthiness of the modified airplane.

The installation of multiple STCs affecting V MC on the same airplane could result in conflicting operating limitations. The airspeed limitations placard(s) and the airspeed indicator(s) must be correctly marked with the highest V MC limitation stated in the AFM, AFM supplements, and pilot operating handbooks (POHs), unless FAA-approved testing has been done to determine the correct V MC and a new AFM supplement has replaced the conflicting supplements. Therefore, the V MC limitation stated in the AFM, AFM supplements, and POHs must be reviewed for each airplane to assure the highest V MC limitation is identified.

Hawker Beechcraft Corporation Models 95-C55, D55, E55, 58, and 58A airplanes may also have STC SA1762SO installed and be subject to this unsafe condition. This condition, if not corrected, could result in sudden and unexpected loss of aircraft control during single engine operation.

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.

The FAA is still evaluating the subject matter presented in this AD. While the unsafe condition identified in this AD is addressed on the airplanes affected by this AD, our evaluation may lead us to consider additional rulemaking on this subject on these and/or other aircraft.

On all Hawker Beechcraft Corporation Models 95-C55, D55, E55, 58, and 58A airplanes equipped with STC SA1762SO, this AD requires inspecting all installed placards, POHs, and airplane flight manual supplements to identify other modifications that may affect V MC and accurately marking the V MC on the airspeed indicator(s) or installing a placard(s) specifying the correct V MC . This AD may also require establishing a new one-engine-inoperative speed (V SSE ) if the existing V SSE is inaccurate.

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 incorrect V MC markings on the airspeed indicator(s) could result in sudden and unexpected loss of aircraft control in the event of an actual engine failure or simulated engine failure during a training flight. 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-2011-1420 and Directorate Identifier 2011-CE-035-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 400 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary placards and/or airspeed indicator remarking that will be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these actions:

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:

In Title 15 of the Code of Federal Regulations, Parts 300 to 799, revised as of Jan. 1, 2011, in Supplement No. 1 of Part 774, make the following corrections:

1. On page 847, in ECCN 9D004, remove the following paragraphs from the end of the entry:

Note: “Development” or “production” “technology” controlled by 9E001 to 9E003 for gas turbine engines remains controlled when used as “use” “technology” for repair, rebuild and overhaul. Excluded from 9E001 to 9E003 control are: technical data, drawings or documentation for maintenance activities directly associated with calibration, removal or replacement of damaged or unserviceable line replaceable units, including replacement of whole engines or engine modules.

2. On page 848, revise the note under the heading “ E. Technology ” to read as follows:

Note: “Development” or “production” “technology” controlled by 9E001 to 9E003 for gas turbine engines remains controlled when used as “use” “technology” for repair, rebuild and overhaul. Excluded from 9E001 to 9E003 control are: technical data, drawings or documentation for maintenance activities directly associated with calibration, removal or replacement of damaged or unserviceable line replaceable units, including replacement of whole engines or engine modules.

We are adopting amendments to Rule 144(a)(3)(viii), 1 Rule 155(a), 2 Rule 215, 3 and Rule 501(a)(5)  4 and 501(e)(1)(i) of Regulation D  5 of our general rules under the Securities Act of 1933 (“Securities Act”)  6 ; Rule 500(a)(1)  7 of our Securities Act form rules; Form D  8 under the Securities Act; Rule 17j-1(a)(8)  9 under the Investment Company Act of 1940;  10 and Rule 204A-1(e)(7)  11 under the Investment Advisers Act of 1940. 12

On January 25, 2011, we proposed amendments to the accredited investor standards in our rules under the Securities Act of 1933  13 to implement the requirements of Section 413(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). 14 The accredited investor standards, which are set forth in Rules 215 and 501 under the Securities Act, are used in determining the availability of certain exemptions from Securities Act registration for private and other limited offerings. Section 4(5) of the Securities Act exempts transactions involving offers or sales by an issuer solely to one or more accredited investors, if the aggregate offering price does not exceed $5,000,000, there is no advertising or public solicitation in connection with the transaction, and the issuer files a notice with the Commission. Pursuant to Regulation D under the Securities Act, an issuer conducting a limited offering of securities pursuant to the safe harbor of Rule 505 or 506 does not have to comply with the information requirements of Rule 502(b) if sales are made only to accredited investors; and sales to accredited investors do not count towards the 35-purchaser limits under Rules 505 and 506. 15 Moreover, accredited investor status obviates the sophistication requirement that Rule 506 imposes on non-accredited investors. 16 One purpose of the accredited investor concept is to identify persons who can bear the economic risk of an investment in unregistered securities, including the ability to hold unregistered (and therefore less liquid) securities for an indefinite period and, if necessary, to afford a complete loss of such investment. 17

Section 413(a) of the Dodd-Frank Act requires us to adjust the accredited investor net worth standard that applies to natural persons individually, or jointly with their spouse, to “more than $1,000,000 * * * excluding the value of the primary residence.”  18 Previously, this standard required a minimum net worth of more than $1,000,000, but permitted the primary residence to be included in calculating net worth. 19 Under Section 413(a), the change to remove the value of the primary residence from the net worth calculation became effective upon enactment of the Dodd-Frank Act. As discussed in detail below, we are adopting amendments to our rules to conform them to the new standard.

In the Proposing Release, we requested comment in nine specific areas. We received 43 comment letters in response. 20 In addition, we received 15 letters commenting on Section 413(a) of the Dodd-Frank Act before the publication of the Proposing Release. 21 These two sets of letters came from a variety of groups and constituencies, including state regulators, professional and trade associations, individual investors, broker-dealers and investment advisers, fund managers, consultants, academics and lawyers. Most comment letters expressed general support for the proposed amendments and the objectives that we articulated in the Proposing Release but suggested modifications to the proposals. The final rules reflect changes made in response to these comments, as well as other clarifying changes. As described in detail in the release, the most significant revisions from the proposal include the addition of (1) a grandfathering provision that permits the application of the former accredited investor net worth test in certain limited circumstances and (2) a provision addressing the treatment of incremental debt secured by the primary residence that is incurred in the 60 days before the sale of securities to the individual. Finally, the language of the proposed rules has been revised to make them clearer and easier to apply.

Section 413(b) specifically authorizes us to undertake a review of the definition of the term “accredited investor” as it applies to natural persons, and requires us to undertake a review of the definition in its entirety every four years, beginning four years after enactment of the Dodd-Frank Act. We are also authorized to engage in rulemaking to make adjustments to the definition after each such review. Section 415 of the Dodd-Frank Act requires the Comptroller General of the United States to conduct a “Study and Report on Accredited Investors” examining “the appropriate criteria for determining the financial thresholds or other criteria needed to qualify for accredited investor status and eligibility to invest in private funds.”  22 The study is due three years after enactment of the legislation. We expect that the results of this study will be taken into account in any rulemaking that takes place in this area after the study is completed. Accordingly, we did not propose, and we are not adopting, any amendments to the definitions of “accredited investor” that are not related to Section 413(a) of the Dodd-Frank Act at this time.

In addition to the changes to the definition of “accredited investor” to implement the requirements of Section 413(a), we are also adopting today technical amendments to update cross-references that have changed as a result of the deletion of former Section 4(5) of the Securities Act and the renumbering of former Section 4(6) as Section 4(5). 23

As discussed above, Section 413(a) of the Dodd-Frank Act requires us to adjust the accredited investor net worth standard  24 that applies under our Securities Act rules to natural persons individually, or jointly with their spouse, to “more than $1,000,000 * * * excluding the value of the primary residence.” Previously, the standard required a minimum net worth of more than $1,000,000, but permitted the primary residence to be included in calculating net worth.

The relevant rules are Securities Act Rules 501 and 215. 25 Rule 501 defines the term “accredited investor” for purposes of non-public and limited offerings under Rules 504(b)(1)(iii), 505 and 506 of Regulation D. 26 The definition of “accredited investor” includes persons who come within any of eight listed categories, or whom the issuer reasonably believes come within one of those categories, at the time of the sale of securities to that person. 27 The $1 million individual net worth standard is one such category. 28

Rule 215 defines the term “accredited investor” under Section 2(a)(15) of the Securities Act. 29 Section 2(a)(15) and Rule 215 set the standards for accredited investor status under Section 4(5) of the Securities Act, formerly Section 4(6), which permits offerings solely to accredited investors of up to $5 million, subject to certain conditions. 30 While Regulation D is frequently relied upon, 31 exclusive reliance on Section 4(5) is rare. 32

Historically, the accredited investor standards under Rule 215 and Rule 501 have been identical. We are adopting identical language in the amendments to Rule 501 and Rule 215, so the two rules will implement Section 413(a) of the Dodd-Frank Act in the same way. As amended, the new individual net worth standard in the accredited investor definition is:

The final accredited investor definition is consistent with the approach taken in the Proposing Release with respect to the basic treatment of the primary residence and indebtedness secured by the primary residence. 33 We have revised the language of this provision to make it easier for issuers, investors and other market participants to apply the new net worth standard. 34 We have also included a provision addressing the treatment of incremental debt secured by the primary residence that is incurred in the 60 days before the sale of securities to the individual, and have revised the proposal so that that the prior accredited investor net worth test will apply in connection with the exercise of rights to acquire securities, so long as the rights were in existence on July 20, 2010, the day before enactment of the Dodd-Frank Act, the investor qualified as an accredited investor on the basis of net worth at the time the rights were acquired, and the investor held securities of the same issuer, other than the rights, on July 20, 2010.

Under the final rules, as in the Proposing Release, individuals' net worth will be calculated excluding any positive equity they may have in their primary residence. 35 As we discussed in the Proposing Release, we believe this approach is the most appropriate way to conform our rules to Section 413(a). It reduces the net worth measure by the net amount that the primary residence contributed to net worth before enactment of Section 413(a), which we believe is what is commonly meant by “the value of a person's primary residence.” Most comment letters supported defining “excluding the value of the primary residence” in this way. 36

Three letters supported excluding the fair market value of the primary residence from net worth without excluding any associated debt. 37 This group of letters argued that our proposal to “net out” any associated debt from the fair market value of the primary residence misinterprets the plain language of Section 413(a), and incentivizes investors to increase the amount of debt secured by their primary residence to acquire other assets for the purpose of inflating their net worth as calculated under our rules. As we stated in the Proposing Release, we believe that reducing an investor's net worth by the value of the primary residence without also excluding associated indebtedness would not accord with the manner in which net worth reflected home equity before enactment of Section 413(a); excluding the residence alone would reduce net worth by more than the amount the residence contributes. We believe the approach in the final rule is the most appropriate approach and is consistent with Section 413(a). 38

Five comment letters advocated excluding from the net worth calculation both the fair market value of the primary residence and all indebtedness secured by the primary residence, regardless of whether such indebtedness exceeds the fair market value of the primary residence. 39 Several of these commentators disagreed with our proposal on the basis that the proposal would require an estimate of the fair market value of the primary residence which, in their view, would make the net worth calculation problematic and uncertain and would force investors to incur additional expense to obtain a third party appraisal of their residence. These commentators argued that excluding both the value of the primary residence and all indebtedness secured by the primary residence would simplify and provide greater certainty regarding the net worth calculation.

We disagree with this view, as did many commentators. 40 In the first instance, estimating the value of the primary residence did not appear to cause problems before the Dodd-Frank Act, when that value was included in net worth for purposes of the definition of accredited investor. The rules did not then, and the rules we adopt today do not now, require a third party opinion on valuation, either for the primary residence or for any other assets or liabilities. All that is required is an estimate of fair market value. 41 Further, as we explained in the Proposing Release, if the amount of mortgage debt exceeds the value of the primary residence ( i.e., an underwater mortgage), excluding the entire debt from net worth for purposes of the accredited investor definition would result in a higher net worth than under a basic net worth calculation that takes into account all assets and all liabilities. Net worth would be effectively increased by the amount by which the mortgage exceeds the value of the primary residence, because that excess amount is treated as a liability in a basic net worth calculation but would be excluded under the standard proposed by these commentators. We do not believe it would be appropriate for us to implement Section 413(a) in a way that results in increased net worth compared to a basic calculation for individuals with underwater mortgages. 42

Cross Vetpharm Group, Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland, filed a supplement to ANADA 200-318 for BIMECTIN (ivermectin) Pour-On, a topical solution used on cattle to control infestations of certain species of external and internal parasites. The supplemental ANADA adds claims for persistent effectiveness against various species of external and internal parasites that were approved for the pioneer product with 3 years of marketing exclusivity (69 FR 501, January 6, 2004). The supplemental ANADA is approved as of September 21, 2011, and 21 CFR 524.1193 is amended to reflect the approval.

Approval of this supplemental ANADA did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required.

The Agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 524 is amended as follows:

The revised policies include: (1) Incorporation of lessons learned from current operations; (2) requirements for the development of contractor oversight plans; (3) requirements for adequate military personnel necessary to execute contract oversight; and, (4) standards of medical care for deployed contractors.

It has been certified that 32 CFR part 158 does not:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section 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 these Executive Orders.

It has been certified that 32 CFR part 158 does not contain a Federal mandate that may result in expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

It has been certified that 32 CFR part 158 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.

It has been certified that 32 CFR part 158 does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. These reporting requirements have been approved by OMB under OMB Control Number 0704-0460, Synchronized Predeployment and Operational Tracker (SPOT) System. DOD does not believe this interim rule will require a change in burden or a change in the information collected. DoD cleared the SPOT collection with the interim rule codified at 32 CFR part 159 (which concerned U.S. government private security contractors (USG PSCs)). The SPOT collection package encapsulated the requirement for all DoD contingency contractor personnel to register in the SPOT database—not just USG PSCs. The publication of this rule has no impact on the extant requirement for contractors to use SPOT.

It has been certified that 32 CFR part 158 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of Government.

Accordingly, 32 CFR part 158 is added to read as follows:

The Burlington County Bridge Commission, who owns and operates this vertical lift drawbridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.5 and 117.716(b) to facilitate the replacement of the lift cables.

The Burlington-Bristol Bridge (Route 413) at mile 117.8, across the Delaware River, between PA and NJ, has a vertical clearance in the closed position to vessels of 62 feet above mean high water.

Under the regular operating schedule the bridge opens on signal as required by 33 CFR 117.5 and the opening of a bridge may not be delayed more than five minutes for a highway bridge, after the signal to open is given as required by 33 CFR 117.716(b).

Under this temporary deviation, beginning 7 a.m. on Tuesday, December 27, 2011 and ending at 3 p.m. on Friday, January 20, 2012, the cable replacement will restrict the operation of the draw span on the following dates and times: Closed-to-navigation each of the following days from 7 a.m. to 3 p.m.: December 27-29, 2011; January 3-6, 2012; January 9-13, 2012; and January 16-20, 2012; except vessel openings will be provided with at least eight hours advance notice given to the bridge operator at (856) 829-3002 or via marine radio on Channel 13.

Vessels that can pass under the bridge without a bridge opening may do so at all times. There are no alternate routes for vessels transiting this section of the Delaware River.

There are approximately four to six vessels per week from four facilities whose vertical clearances exceed the closed bridge position, requiring an opening of the draw span. The Coast Guard has coordinated this replacement work with the Mariners Advisory Committee for Bay & River Delaware, and will inform the other users of the waterway through our Local and Broadcast Notices to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation. The bridge will not be able to open in an emergency due to the lift cables being removed.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

The City of Baltimore has requested a temporary deviation from the current operating regulation of the Hannover Street S2 bridge across the Middle Branch of the Patapsco River, mile 12.0, at Baltimore, MD. The requested deviation is necessary to accommodate gear motor and gate repairs on the bridge. To facilitate this work, the draw of the bridge will open on signal if at least four hours of notice is given except that from 6:30 a.m. to 9:30 a.m. and from 4 p.m. to 6:30 p.m. Monday through Friday, the bridge need not open. The deviation will be in effect from Monday, January 9, 2012 through Friday, July 6, 2012.

The vertical clearance of this double-leaf bascule bridge in the closed position is 38 feet at Mean High Water and unlimited in the open position. The operating regulation is set forth in 33 CFR 117.541(a) which states that the bridge will open on signal except that from 6:30 a.m. to 9:30 a.m. and 4 p.m. to 6 p.m. the drawbridge need not open except for emergency vessels. Vessels with mast heights less than 38 feet that are able to pass under the bridge in the closed position may do so at any time.

The main users of this waterway are recreational motorboats and sailboats. The waterway users have been notified of the deviation and the Coast Guard has not received any objections. The Coast Guard will inform waterway users of the temporary deviation through our Local and Broadcast Notices to Mariners to minimize any potential impacts caused by the four hour advance notice. The bridge owner will also be required to post signs upstream and downstream of the bridge notifying mariners of the temporary regulation change.

Tender logs provided by the city have shown that this bridge has had minimal openings within the last three years. The bridge will be able to open for emergencies. There are no alternate routes available to vessels.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

An engineering consulting firm on behalf of the Maryland State Highway Administration (SHA), who owns and operates this single leaf bascule drawbridge, has requested a temporary deviation from the current operating schedule to allow for an electrical outage of the bridge for testing purposes. Under the regular operating schedule required by 33 CFR 117.569(b), the bridge opens on signal, except between November 1 and March 31 the draw must open only if at least five hours advance notice is given.

The Route 675 Bridge across Pocomoke River, mile 15.6 at Pocomoke City, MD, has a vertical clearance in the closed position of three feet above mean high water. Under this temporary deviation, the engineering consulting firm has requested to maintain the bridge in the closed position to vessels beginning at 7 a.m. on January 19, 2012 until and including 5 p.m. on January 20, 2012, to allow for an electrical outage of the bridge for testing purposes.

Bridge opening data supplied by SHA and reviewed by the Coast Guard revealed that there were approximately five openings in January 2011.

The Coast Guard has coordinated the restrictions with the local users of the waterway and will inform other users through our Local and Broadcast Notices to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation. There are no alternate routes for vessels transiting this section of the Pocomoke River and the drawbridge will be not able to open in the event of an emergency.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard will enforce the Sacramento New Years Eve Fireworks Display safety zones in the navigable waters of the Sacramento River near positions 38°34′48.26″ N, 121°30′38.52″ W (NAD 83) and 38°34′49.84″ N, 121°30′29.59″ W (NAD 83). Upon the commencement of the first fireworks display, scheduled to take place from 9 p.m. to 9:15 p.m. on December 31, 2011, the safety zone applies to the navigable waters around the fireworks launch site near position 38°34′48.26″ N, 121°30′38.52″ W (NAD 83) within a radius of 1,000 feet. Upon the commencement of the second fireworks display, scheduled to take place at 11:59 p.m. on December 31, 2011 until 12:15 a.m. on January 1, 2012, the safety zone applies to the navigable waters around the fireworks launch sites near positions 38°34′48.26″ N, 121°30′38.52″ W (NAD 83) and 38°34′49.84″ N, 121°30′29.59″ W (NAD 83) within a radius of 1,000 feet.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order of direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with extensive advance notification of this enforcement period via the Local Notice to Mariners. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

In response to the needs and concerns of veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, Congress enacted the Persian Gulf War Veterans' Benefits Act, Title I of the Veterans' Benefits Improvement Act of 1994, Public Law 103-446, which was codified at 38 U.S.C. 1117. This law provided authority for the Secretary of Veterans Affairs (Secretary) to compensate Gulf War veterans with a chronic disability resulting from an undiagnosed illness that became manifest either during service on active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of ten percent or more disabling during a presumptive period determined by the Secretary.

Public Law 103-446 directed the Secretary to prescribe by regulation the period of time, following service in the Southwest Asia theater of operations, determined to be appropriate for the manifestation of an illness warranting payment of compensation. It further directed that the Secretary's determination of a presumptive period be made only following a review of any credible medical or scientific evidence and the historical treatment afforded disabilities for which manifestation periods have been established, taking into account other pertinent circumstances regarding the experiences of veterans of the Persian Gulf War.

To implement 38 U.S.C. 1117, VA published a final rule to add 38 CFR 3.317, which established the framework for the Secretary to pay compensation under the authority granted by the Persian Gulf War Veterans' Benefits Act. See 60 FR 6660, February 3, 1995. As part of that rulemaking, VA established a 2 year, post-Gulf War service presumptive period based primarily on the historical treatment of disabilities for which manifestation periods have been established and pertinent facts known regarding service in the Southwest Asia theater of operations during the Persian Gulf War. VA determined that there was little or no scientific or medical evidence, at that time, useful in determining an appropriate presumptive period for undiagnosed illnesses.

Due to the continuing lack of medical and scientific evidence about the nature and cause of the illnesses suffered by Gulf War veterans and the inadequacy of a designated presumptive period for undiagnosed illnesses, the Secretary established December 31, 2001, as the date by which an undiagnosed illness must become manifest for purposes of claims based on service in the Southwest Asia theater of operations during the Persian Gulf War. In 2001, VA further extended the period from December 31, 2001, to December 31, 2006.

In December 2001, section 202(a) of Public Law 107-103 amended 38 U.S.C. 1117 by revising the term “chronic disability” to include the following (or any combination of the following): (a) An undiagnosed illness; (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs and symptoms; or (c) any diagnosed illness that the Secretary determines warrants a presumption of service connection. The revised term “qualifying chronic disability,” has broadened the scope of those health outcomes the Secretary may include under the presumption of service connection. Under 38 U.S.C. 1117, a chronic disability must still occur during service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of ten percent or more disabling during the prescribed presumptive period following such service. VA amended 38 CFR 3.317 to reflect these changes. See 68 FR 34539, June 10, 2003.

As required by Public Law 105-277, the National Academy of Sciences (NAS) conducts ongoing review, evaluation, and summarization of the scientific and medical literature for peer review regarding the possible association between service in the Southwest Asia theater of operations and long-term adverse health effects. Due to the inconclusive nature of the scientific and medical evidence concerning the manifestation period for the subject illnesses, in December 2007, VA published a final rule to further extend the manifestation period from December 31, 2006 (previously extended), to December 31, 2011. See 72 FR 68507-01. Additionally, on October 13, 2010, Congress enacted section 806 of Public Law 111-275, which directed NAS to continue to review, evaluate, and summarize scientific and medical literature associated with Persian Gulf War service and broadly expanded the time frame for NAS to complete this research, since military operations in the Southwest Asia Theater of Operations continue, including Operation Iraqi Freedom, and no end date for the Gulf War has been established by Congress. See 38 U.S.C. 101(33).

In a report published in 2010 titled Gulf War and Health, Volume 8: Update of Health Effects of Serving in the Gulf War, NAS evaluated the available scientific and medical literature regarding the prevalence of chronic multi-symptom illnesses in Gulf War veterans. Consistent with its prior findings, NAS concluded, based on multiple studies, that there is sufficient evidence of an association between deployment to the Gulf War and chronic multi-symptom illness. NAS analyzed two follow-up studies that surveyed veterans who served in the Gulf War in 1991 in order to determine whether the increased prevalence of chronic multi-symptom illness persisted several years after such service. One study, conducted 10 years after the 1991 Gulf War, involved conducting detailed examinations and medical histories of veterans deployed to the Gulf War and non-deployed veterans of the same era. The study found that, 10 years after the 1991 Gulf War, chronic multi-symptom illness was nearly twice as prevalent in veterans deployed to the Gulf War (present in 28.9 percent of such veterans) than in the non-deployed veterans (15.8 percent). The study found that the prevalence of chronic multi-symptom illness decreased gradually over time, but remained significantly elevated 10 years after service. The other follow-up study involved a 2005 survey of veterans deployed to the 1991 Gulf War and their non-deployed counterparts of that era. That study found that 36.5 percent of the deployed veterans reported experiencing symptoms of chronic multi-symptom illness in 2005, compared to 11.7 percent of the non-deployed veterans. While this report is limited in that it is based on self-reports, the results are statistically significant and are consistent with the other follow-up report.

The currently available scientific and medical literature thus suggests that, while the prevalence of chronic multi-symptom illness may decrease over time following deployment to the Gulf War, the prevalence remains significantly elevated among deployed veterans more than a decade after deployment. At present, there is not a sufficient basis to identify the point, if any, at which the increased risk of chronic multi-symptom illness may abate. Further follow-up studies may provide additional information relevant to this issue in the future.

Section 501(a) of Title 38, United States Code, provides that the Secretary of Veterans Affairs “[h]as authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws.” Because scientific uncertainty remains as to the cause of illnesses suffered by Persian Gulf War veterans and the time period in which such veterans have an increased risk of chronic multi-symptom illness, and because scientific studies and NAS reviews are ongoing, in order to ensure that benefits established by Congress are fairly administered, VA is further amending 38 CFR 3.317 to extend the evaluation period from December 31, 2011, to December 31, 2016.

The Secretary of Veterans Affairs finds that there is good cause under the provisions of 5 U.S.C. 553(b)(3)(B) to publish this rule without prior opportunity for public comment. Absent extension of the sunset date in the current regulation, VA's authority to provide benefits in new claims for qualifying chronic disability in Gulf War veterans will lapse on December 31, 2011. A lapse of such authority would have significant adverse impact on veterans disabled due to such disabilities. To avoid such impact, VA is issuing this rule as an interim final rule. However, VA invites public comments on this interim final rule and will fully consider and address any comments received.

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

The Secretary hereby certifies that this 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. 601-612. This rule would not affect any small entities. Only VA beneficiaries could be directly affected. 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.

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 effects, 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,” which requires 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.”

The economic, interagency, budgetary, legal, and policy implications of this rule have been examined and it has been determined to be a significant regulatory action under Executive Order 12866.

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 the 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 year. This rule would have no such effect on State, local, and tribal governments, or on the private sector.

The Catalog of Federal Domestic Assistance program numbers and titles for this rule are: 64.109, Veterans Compensation for Service-Connected Disability.

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 November 28, 2011, for publication.

For the reasons set out in the preamble, VA amends 38 CFR part 3 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. This supplementary information section is arranged as follows:

The background for EPA's national actions pertaining to GHG's as well as today's action is discussed in detail in our September 26, 2011 proposal (76 FR 59334). The comment period was open for thirty days and no comments were received.

We are fully approving Albuquerque/Bernalillo County's December 15, 2010, SIP submittal, relating to PSD requirements for GHG-emitting sources in Albuquerque/Bernalillo County. Specifically, the SIP revision establishes appropriate emissions thresholds for determining PSD applicability to new and modified GHG-emitting sources in accordance with EPA's Tailoring Rule. We are approving this SIP revision because it is in accordance with the Clean Air Act (CAA) and EPA regulations regarding PSD permitting for GHGs.

As explained in our proposed approval of the Albuquerque/Bernalillo County December 15, 2010, SIP revision, 76 FR 59334 (September 26, 2011), since we are approving Albuquerque/Bernalillo County's changes to its air quality regulations to incorporate the appropriate thresholds for GHG permitting applicability into its SIP, then paragraph (e) in Section 52.1634 of 40 CFR part 52, as included in EPA's SIP Narrowing Rule—which codifies EPA's limiting its approval of Albuquerque/Bernalillo County's PSD SIP to not cover the applicability of PSD to GHG-emitting sources below the Tailoring Rule thresholds—is no longer necessary. In today's action, we are also amending Section 52.1634 of 40 CFR part 52 to remove this unnecessary regulatory language.

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

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

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

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

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

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

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

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

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

• Does not provide EPA with the discretionary authority to address, 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 27, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purpose 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 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.

The background for today's action is discussed in detail in our October 17, 2011, proposal (76 FR 64065). In that notice, we addressed severable portions of SIP revisions submitted by the state of Oklahoma to address the requirement in section 110(a)(2)(D)(i)(I) of the Clean Air Act that all SIPs contain adequate provisions to prohibit emissions that significantly contribute to nonattainment of the NAAQS in another state and to prohibit emissions that interfere with maintenance of the NAAQS in another state. 42 U.S.C. 7410(a)(2)(D)(i)(I). Specifically, we proposed to (1) disapprove, or in the alternative, approve the severable portion of the May 1, 2007, SIP submittal asserting that Oklahoma does not interfere with maintenance of the 1997 8-hour ozone NAAQS in other states, (2) approve the severable portion of the May 1, 2007, SIP submittal asserting that Oklahoma emissions do not contribute significantly to nonattainment of the 1997 8-hour ozone NAAQS in other states, and (3) approve the severable portions of the May 1, 2007, and April 5, 2011, SIP submittals asserting that Oklahoma emissions do not contribute significantly to nonattainment in, or interfere with maintenance of the 1997 and 2006 PM 2.5 NAAQS in other states.

We received comments on our proposal from (1) the Oklahoma Department of Environmental Quality, (2) Western Farmers Electric Cooperative and Oklahoma Gas and Electric Company, and (3) the Oklahoma Attorney General. The comments are available for review in the electronic docket for this rulemaking at the regulations.gov Web site (Docket No. EPA-R06-OAR-2007-0314). All the comments addressed our proposal to disapprove, or in the alternative, approve the severable portion of the May 1, 2007, SIP submittal demonstrating Oklahoma does not interfere with maintenance of the 1997 8-hour ozone NAAQS in other states. We are not taking any final action at this time on that severable portion of our October 17, 2011 proposal. Therefore, we are also not addressing at this time the comments we received regarding that severable portion of the proposal. We intend to respond to comments and take a final action in a future rulemaking.

We did not receive any adverse comments regarding our proposal to approve the severable portions of the SIP submittals demonstrating that Oklahoma emissions (1) do not contribute significantly to nonattainment of the 1997 ozone NAAQS in other states, and (2) do not contribute significantly to nonattainment, or interfere with maintenance of the 1997 and 2006 PM 2.5 NAAQS in other states.

We are approving the severable portion of the Oklahoma SIP revision submitted on May 1, 2007, to address the significant contribution to nonattainment requirement for the 1997 8-hour ozone NAAQS. We are also approving the severable portions of the SIP revisions submitted on May 1, 2007, and April 5, 2011, to address the significant contribution to nonattainment or interference with maintenance requirements for the 1997 PM 2.5 NAAQS and the 2006 PM 2.5 NAAQS. This action is being taken under section 110 of the CAA.

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

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

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

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

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

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

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

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

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

• Does not provide EPA with the discretionary authority to address, 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 27, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed 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 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Site Deletion V. Deletion Action I. Introduction

EPA Region 4 is publishing this direct final Notice of Deletion of the Hipps Road Landfill (Site), from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Because EPA considers this action to be noncontroversial and routine, this action will be effective February 27, 2012 unless EPA receives adverse comments by January 30, 2012. Along with this direct final Notice of Deletion, EPA is co-publishing a Notice of Intent to Delete in the “Proposed Rules” section of the Federal Register . If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion, and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Hipps Road Landfill Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:

i. responsible parties or other persons have implemented all appropriate response actions required;

ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to deletion of the Site:

(1) EPA consulted with the State of Florida prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co-published today in the “Proposed Rules” section of the Federal Register .

(2) EPA has provided the Florida Department of Environmental Protection (FDEP) 30 working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the state, through the FDEP, has concurred on the deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, Florida Times-Union. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL:

The twelve acre Hipps Road Landfill Site (EPA CERCLIS Identification Number FLD980709802) is located on the southeastern corner at the intersection of Hipps Road and Exline Road in Jacksonville Heights, Duval County, Florida. Landfill operations were conducted on approximately six acres of the Site. The Site is surrounded by a residential neighborhood. The Site's landfill area was initially a cypress swamp. In 1968, property owner G. O. Williams contracted with Waste Control of Florida (WCF) to fill the low-lying areas of the property. Landfill operations ceased in 1970 and were covered by soil. In the early 1980s, residents complained about unusual tastes and odors in private water wells, which led to investigations that identified groundwater contamination. The City of Jacksonville began to provide residents with bottled water for use as a potable water source. The City of Jacksonville completed the extension of a city water line to the affected area in October 1983 and by September 1985, all area residents were connected to the public water system. WCF acquired the residential properties in 1987. Waste Management Corporation (WM) inherited the Site property through its acquisition of WCF. Surface water is not used as a drinking water supply in the area. Surface waters nearby are used for recreational purposes such as swimming, boating, and fishing. There are no ecologically sensitive areas near the Site, which is situated above the 500-year flood plain. WM, the current landowners, have expressed interest in using the Site as a wildlife habitat area. The Site was proposed to the NPL in September 1983 (48 FR 40674) and was finalized to the NPL on September 21, 1984 (49 FR 37070).

In May 1986, EPA presented the results of the RI/FS, which included geophysical investigations, soil sampling, and groundwater sampling to characterize the Site. The results indicated that Site groundwater was the media of concern, and the migration of contaminants would occur in the lower sand aquifer located to the northeast of the landfill.

The contaminants of concern (COCs) identified at the Site in the Site's 1990 ROD Amendment were bis (2-ethylhexyl) phthalate, chlorobenzene, chromium, 1,4-dichlorobenzene, trans-1,2-dichloroethylene, ethyl benzene, lead, naphthalene, and vinyl chloride. The risk assessment conducted during the FS concluded that none of the compounds detected in Site soil were present at concentrations of toxicological concern. The RI/FS was completed in September 1986.

Seven groundwater and five soil remedial actions were retained for detailed evaluation in the FS and were evaluated based on the National Contingency Plan decision criteria found at 40 CFR 300.430(e)(9) and include nine separate criteria used to evaluate each combination of remedial alternatives.

The ROD was released on September 3, 1986. The remedy for the Site included the following components:

• Proper landfill closure in a manner consistent with all applicable federal, state and local requirements.

• Recovery of contaminated groundwater with treatment at the publicly owned treatment works (POTW).

• Long-term monitoring of groundwater.

• Operation and maintenance includes upkeep of the landfill cap, groundwater monitoring, and maintenance of the groundwater recovery system. O&M will continue for at least 20 years after the final groundwater recovery operation.

• Institutional controls may include, but are not limited to, fencing the site, continuance of the local well drilling prohibition, land use restrictions, grouting existing private wells, and public or PRP acquisition of private lands.

In September 1990, EPA amended the ROD to provide for on-Site groundwater treatment and disposal as a more cost effective treatment alternative to disposal of groundwater to the publicly-owned treatment works (POTW). The 1990 ROD Amendment changed the remedy to the recovery of groundwater from five recovery wells; treatment of contaminated groundwater by air stripping; and the use of an on-Site holding pond for disposal of treated groundwater.

In August 1994, EPA issued an ESD to alter the method by which the abandonment of private wells impacted by the Site groundwater was achieved. In June 1996, EPA issued a second ESD to address operating difficulties at the groundwater treatment system during excessive rainfall and/or effluent discharges. During this situation, the high water level switch in the holding pond would trigger a system shutdown. In an effort to keep the treatment system operational, the ESD allowed for the periodic discharge of treated groundwater to the local POTW during high water levels in the holding pond.

In July 2004, EPA issued a third ESD, which changed the existing pump-and-treat recovery system to a monitored natural attenuation (MNA) plan to complete remediation of remaining groundwater contaminants.

On May 22, 1989, the landfill closure design was completed. The Remedial Design used a standard municipal cap design consisting of:

a. General earthfill cover to provide a crown over the landfill area with a minimum grade of 2.5 percent towards the perimeter of the landfill.

b. One foot of low-permeability clay having a permeability of 1 × 10 −6 cm/s or less.

c. Two feet of vegetative soil cover and vegetative cover.

The Remedial Action construction for both the landfill closure and groundwater treatment system began in October 1989 and was completed on September 2, 1993, as documented in the September 9, 1994, Preliminary Closeout Report. Construction of the landfill cap was completed in April 1990 and final inspection of the landfill cover was April 26, 1990. The complete groundwater treatment system was constructed from May through August 1993. The groundwater treatment system included the installation of recovery wells, air-stripping system, and air blower system. Long-term groundwater monitoring began on March 15, 1994.

As recommended in the 2001 MNA Pilot Study Report, the Remedial Goal Verification Plan (RGVP) monitoring program was replaced with the MNA long-term monitoring program beginning in September 2004. The MNA long-term monitoring program called for groundwater monitoring well sampling semi-annually.

The wells included in the MNA long-term monitoring program fulfilled the following four purposes: (1) Confirm ongoing natural attenuation mechanisms; (2) ensure that benzene and vinyl chloride concentrations continue to be below cleanup goals; (3) monitor benzene and vinyl chloride in groundwater in areas in proximity to (or upgradient of) potential receptors; and (4) monitor the efficiency of the landfill cap. The MNA long-term monitoring program included the following tasks:

• Semi-annual hydraulic (water level) monitoring of piezometers, monitoring wells, and recovery wells, as specified in the RGVP.

• Semi-annual groundwater sample collection at upgradient wells TMW-1I and TMW-5I; side-gradient wells TMW-10I; and plume wells TMW-9I, TMW-13I, and RW-2 for analyses of volatile organic compounds (VOCs) via EPA Method 8260B. EPA approved discontinuing sampling and analysis of MNA long-term monitoring program wells TMW-7I, RW-3, TMW-6I, and RW-1 on March 3, 2006. Concentrations of benzene and vinyl chloride detected in these monitoring wells were below ROD cleanup criteria for four or more consecutive quarters and satisfied the cleanup criteria for the RGVP and MNA monitoring program.

• Semi-annual field monitoring of the following parameters where groundwater samples were collected: dissolved oxygen, oxidation reduction potential, conductivity, pH, and temperature.

• Annual groundwater sample collection for the analyses of biogeochemical parameters and dissolved gases, and field analysis of alkalinity, sulfide, and ferrous iron.

Groundwater monitoring occurred semi-annually and associated reports were submitted to EPA semi-annually. Off-Site wells were sampled until cleanup goals were achieved for four consecutive sampling events in February 2010.

Since the Site's 2005 Five Year Review, the landfill cover, infiltration pond, and security fencing were inspected semi-annually; each Site inspection found that they were properly maintained. In addition, each semi-annual report has shown that:

• Site security, including a locked gate and perimeter fencing with appropriate notice signs, was in place.

• Stormwater management features were functioning as designed.

• The landfill cover was inspected.

• No adverse conditions were observed.

The Site has two institutional controls in place that provide protection to potential receptors. The Site lies within a Florida Groundwater Delineation Area found at Florida Administrative Code (FAC) 62-524, which restricts placement of new wells on the property and surrounding areas. This regulation was codified on March 25, 1990. The Site also lies within the jurisdiction of the St. John's River Water Management District (SJRWMD), which implements water supply well permitting controls and restricts groundwater withdrawals. A restrictive covenant recorded in the Duval County real estate records for the five parcels that constitute the Site restricts land use so that there would be no land disturbance which would effect the integrity of the final landfill cover or any component of the containment system without approval from the EPA Region 4 Regional Administrator. This restrictive convenant was recorded on January 24, 1988.

Groundwater sampling data from September 2005 through September 2009 has been reviewed to determine cleanup goal attainment. In addition, groundwater sampling results of three off-Site wells, TMW-91, TMW-131 and RW-2, were reviewed from November 2009 and February 2010. No COCs have been detected in any off-Site well since 2008. No COCs have been detected above cleanup goals in on-Site wells since the 2005 Five Year Review.

Through the Fifty-First Monitoring and Maintenance Report monitoring period which has groundwater monitoring data obtained from April 1, 2009 to September 20, 2009, only three MNA monitoring wells (TMW-91, TMW-131, and RW-2) had not achieved the ROD cleanup criteria of four consecutive sampling events with results below cleanup goals. Benzene was detected above the cleanup goal of 1 µg/L in the three wells at concentrations ranging from 1.0 to 4.5 µg/L. Vinyl chloride was detected above the cleanup goal of 1 µg/L in RW-2 once in October 2005 and in TMW-131 in March and September 2006 and March 2007. Additional sampling of TMW-91, TMW-131 and RW-2 was performed in November 2009 and February 2010. The March 2010 Final Monitoring and Maintenance Report and Site Delisting Request included the supplemental TMW-91, TMW-131, and RW-2 sampling results, which found no COCs above cleanup goals. No COCs were detected above cleanup goals in the February, September, and November 2009 and February 2010 sampling. As of February 2010, all monitoring wells have met the ROD criteria of meeting cleanup goals for four consecutive monitoring events.

Waste Management designed and implemented an Operation and Maintenance Plan to ensure the long-term effectiveness of the ROD remedial elements. This Operations and Maintenance Plan was submitted on May 17, 1994. This Plan addressed maintaining the integrity and effectiveness of the final cover, including repairing the landfill cover; maintenance and sampling of the groundwater monitoring network; and protecting and maintaining surveyed benchmarks associated with institutional controls.

Since hazardous substances are present onsite above levels allowing for unlimited use and unrestricted exposure, statutory Five Year Reviews will be conducted by EPA every five years, pursuant to CERCLA Section 121 (c) and as provided in OSWER Directive 9355.7-03B-P, Comprehensive Five-Year Review Guidance (EPA, 2001). The purpose of these reviews is to ensure that the Site remedy remains protective of human health and the environment. The first Five Year Review at the Site was conducted in February 1996, the second in July 2000, the third in September 2005, and the fourth in July 2010.

The Fourth Five-Year Review concluded that remedial actions at the Hipps Road Landfill Superfund Site are protective of human health and the environment in the short term, and exposure pathways that could result in unacceptable risks are being controlled. In order for the site to remain protective in the long-term, the Site needed to be assessed to determine if ICs are necessary to prevent inappropriate land use. Further analysis of existing groundwater use prohibitions related to the delineated areas and examination of the existing restrictive covenant indicate that all institutional controls needed at the Site have been implemented. EPA will complete the next Five Year Review by July 2015.

A public meeting was held on May 7, 1986, to present EPA's proposed plan for remedial action to the local community. Since that time community involvement activities, including community interviews, have occurred during each Five-Year review period (1996, 2000, 2005, 2010). Copies of site documents are in the designated Site repository at the Jacksonville Public Library, Webb-Wesconnett Regional Branch located at 6887 103rd St., Jacksonville, Florida.

Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, Florida Times-Union. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.

The NCP specifies that EPA may delete a site from the NPL if “all appropriate responsible parties or other persons have implemented all appropriate response actions required” or “all appropriate fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate”. EPA, with the concurrence of the State of Florida through the FDEP by a letter dated April 22, 2011, has determined that the Site responsible party Waste Management has implemented all appropriate response actions required and no further response action is required. Therefore, EPA is proposing the deletion of the site from the NPL. All of the completion requirements for the site have been met as described in the Hipps Road Landfill Final Close Out Report (FCOR) dated April 21, 2011.

The EPA, with concurrence of the State of Florida through the FDEP, has determined that all appropriate response actions under CERCLA, other than operation, maintenance, monitoring and five-year reviews have been completed. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective February 27, 2012 unless EPA receives adverse comments by January 30, 2012. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

On September 15, 2011, upon the order of the U.S. Court of Appeals for the District of Columbia Circuit, the U.S. District Court for the District of Columbia, in the case of Oceana, Inc. v. Locke (Civil Action No. 08-318), vacated the Northeast Region Standardized Bycatch Reporting Methodology (SBRM) Omnibus Amendment and remanded the case to NMFS for further proceedings consistent with the D.C. Circuit Court's decision. To comply with the ruling, NMFS announces that the Northeast Region SBRM Omnibus Amendment is vacated and all regulations implemented by the SBRM Omnibus Amendment final rule (73 FR 4736, January 28, 2008) are removed.

The removal of regulations implementing the SBRM Omnibus Amendment is not an exact reversal of the regulation amendatory instructions as written in the January 28, 2008, final rule. Some regulatory changes that occurred subsequent to the SBRM Omnibus Amendment final rule had to be accommodated. The final rule implementing the Annual Catch Limit and Accountability Measure Omnibus Amendment (76 FR 60606, September 29, 2011) reorganized the regulations for some species managed by the Mid-Atlantic Fishery Management Council and changed where SBRM provisions were located. In addition, the final rule implementing Amendment 11 to the Atlantic Sea Scallop Fishery Management Plan (FMP) (73 FR 20090, April 14, 2008) and the final rule implementing Amendment 3 to the Northeast Skate Complex FMP (75 FR 34049, June 16, 2010) inadvertently overwrote the SBRM provisions for those fisheries. Therefore, this action does not need to remove SBRM provisions in those two fisheries.

This action removes the SBRM section at § 648.18 and removes SBRM-related items from the lists of measures that can be changed through the FMP framework adjustment and/or annual specification process for the Atlantic mackerel, squid, and butterfish; Atlantic surfclam and ocean quahog; Northeast multispecies, monkfish; summer flounder; scup; black sea bass; bluefish; Atlantic herring; spiny dogfish; deep-sea red crab; and tilefish fisheries. This action also makes changes to the regulations regarding observer service provider approval and responsibilities and observer certification. The SBRM Omnibus Amendment had authorized the development of an industry-funded observer program in any fishery, and the final rule modified regulatory language in these sections to apply broadly to any such program. This action revises that regulatory language to refer specifically to the industry-funded observer program in the scallop fishery, which existed prior to the adoption of the SBRM Omnibus Amendment.

The Assistant Administrator for Fisheries finds it is unnecessary, impracticable, and contrary to the public interest to provide for prior notice and an opportunity for public comment. This action is required by Court order and, therefore, NMFS has no discretion in implementing this rule. The September 15, 2011, Court order requires NMFS to vacate the SBRM Omnibus Amendment and the implementing regulations. Public comments will not affect the Court's order. Therefore, prior notice and the opportunity for public comment, pursuant to authority set forth at U.S.C. 553(b)(B), is unnecessary and impracticable because of the Court order.

This final rule is promulgated under NMFS' general rule making authority specified at 16 U.S.C. 1855(d), and is issued to bring the regulations into compliance with the U.S. District Court for the District of Columbia's order vacating the SBRM Omnibus Amendment.

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

This rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment. Accordingly, no initial regulatory flexibility analysis is required, and none has been prepared.

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

Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.100.

The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which was published on December 17, 1993 (58 FR 65936), provided a mechanism for summer flounder quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine summer flounder commercial quota under § 648.100(d). The Regional Administrator is required to consider the criteria set forth in § 648.100(d)(3) in the evaluation of requests for quota transfers or combinations.

North Carolina has agreed to transfer 63,573 lb (28,836 kg) of its 2011 commercial quota to Virginia. This transfer was prompted by summer flounder landings of 14 North Carolina vessels that were granted safe harbor in Virginia due to hazardous shoaling in Oregon Inlet, North Carolina, severe weather conditions, and/or mechanical problems between October 31, 2011, and December 8, 2011, thereby requiring a quota transfer to account for an increase in Virginia's landings that would have otherwise accrued against the North Carolina quota. The Regional Administrator has determined that the criteria set forth in § 648.100(d)(3) have been met. The revised summer flounder quotas for calendar year 2011 are: North Carolina, 3,315,571 lb (1,503,918 kg); and Virginia, 5,141,507 lb (2,332,148 kg).

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

Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.100.

The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which was published on December 17, 1993 (58 FR 65936), provided a mechanism for summer flounder quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine summer flounder commercial quota under § 648.100(d). The Regional Administrator is required to consider the criteria set forth in § 648.100(d)(3) in the evaluation of requests for quota transfers or combinations.

Maine has agreed to transfer 8,200 lb (3,719 kg) of its 2011 commercial quota to Rhode Island. This transfer was prompted by a diligent effort from Rhode Island to not overharvest its summer flounder commercial quota. The Regional Administrator has determined that the criteria set forth in § 648.100(d)(3) have been met. The revised summer flounder quotas for calendar year 2011 are: Rhode Island, 2,733,139 lb (1,239,731 kg); and Maine, 64 lb (29 kg).

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

The Pacific Fishery Management Council (Council) developed Amendment 16 to bring the Salmon FMP into compliance with the 2007 MSA amendments and revised NS1Gs (74 FR 3178, January 16, 2009). The Council took final action on Amendment 16 in June 2011 and transmitted the amendment to NMFS on September 12, 2011. NMFS published a Notice of Availability of Amendment 16 in the Federal Register (76 FR 57945, September 19, 2011) to notify the public of the availability of the amendment and invite comments. Alternatives considered in the development of Amendment 16 were analyzed in a draft Environmental Assessment (EA). NMFS published a proposed rule and notice of availability of the draft EA in the Federal Register (76 FR 65673, October 24, 2011) to notify the public and invite comments. NMFS received 10 comment submissions. The comments are summarized and responded to in the “Response to Comments” section of this rule.

Amendment 16 reorganizes and classifies stocks in the FMP, establishes new status determination criteria, establishes a framework for defining reference points related to overfishing limits (OFL), acceptable biological catch (ABC), and annual catch limits (ACLs), and establishes appropriate accountability measures (AM) necessary to prevent the ACLs from being exceeded, and to mitigate any overages that may occur. Amendment 16 also sets a new conservation objective for Klamath River fall Chinook, and specifies de minimis fishing rate provisions to address management in years of low abundance. The details of Amendment 16 were described in the proposed rule (76 FR 65673, October 24, 2011) and are not repeated here. This final rule identifies changes to the regulations under 50 CFR 660 subpart H to implement Amendment 16 and describes changes made from the proposed rule.

NMFS invited comments on Amendment 16, the related draft EA, and the proposed rule. Comments were received from 10 groups and individuals, including a letter of “no comment” submitted by U.S. Department of the Interior. Complete written comments are incorporated into Appendix J of the EA. Many comments were similar in substance, therefore, the comments are summarized and addressed below.

Comment 1: Several comments received included requests to extend the comment period for up to 60 days.

Response: NMFS determined that extension of the comment period for this action was not possible. The Council and NMFS are operating under a statutory deadline to implement an amendment to the FMP to bring it into compliance with the requirements of the MSA to implement annual catch limits and accountability measures in 2011. Additionally, under the MSA, NMFS has 95 days to approve or disapprove an FMP amendment. If NMFS did not take action within that 95-day period, the amendment would have been approved by default. The PFMC transmitted the Amendment 16 to NMFS on September 12; therefore, the 95-day period to approve or disapprove the amendment would have expired on December 16. Therefore, there was insufficient time to allow for a meaningful extension of the comment period. In addition, Amendment 16 has been in development in an open, public process since March 2009. There have been multiple opportunities to comment at public meetings throughout this process, and an ongoing opportunity to submit written comments. The Council developed Amendment 16 at its meetings in Washington, Oregon, Idaho, and California of both the full Council and the Salmon Amendment Committee, all of which were open to the public and announced in the Federal Register. To facilitate those unable to attend Council meetings in person, the Council streams meetings live on the Internet.

Comment 2: While habitat conditions in the Klamath River basin have been improving, the number of fish returning to spawn has been observed to decrease over time. For example, habitat restoration efforts have resulted in increased production of age 0+ Chinook in the Scott River. The reason for the decline in spawning adults is the decline in returning adults.

Response: Amendment 16 should result in greater spawning escapement throughout the Klamath Basin, because managing for MSY spawning escapement will result in managing for an escapement of 40,700 natural area adult spawners rather than 35,000.

Comment 3: The EA does not address all in-river tribal harvest, particularly that by the Karuk Tribe and occupants of the Resighini Reservation.

Response: The EA assesses the impacts the proposed actions on the affected environment, which includes in-river harvest by the Yurok and Hoopa Valley Tribes (sections 4.1.2.2, 4.1.5.4, and 4.4.8). Additional information was added to the final EA in section 4.1.5.4 noting the rationale for de minimis fishing at low stock size to address minimal tribal needs. Thus, the EA adequately accounts for harvest by the Yurok and Hoopa Valley tribal members.

The Karuk tribe and Resighini Rancheria do not have federally recognized fishing rights. The Karuk tribal dipnet fisheries, and fishing conducted by members of the Resighini Rancheria, are conducted in-river under state regulations (15 CCR § 7.50(b)(91.1)), and are subject to the same season and bag limit restrictions as the in-river non-Indian recreational fisheries; tribal effort is thought to be minor compared to the recreational fishery. Fish caught in these fisheries may not be sold commercially, so there are no significant economic impacts. The biological impacts are reflected in spawning escapement, which is the basis for Annual Catch Limits (ACL) and status determination criteria (SDC) which are part of the proposed action and are thoroughly analyzed in the EA. Information describing the Karuk and Resighini fisheries was added to section 3.4.6.4 of the EA.

Comment 4: The EA fails to analyze the effects of in-river fisheries, which according to one commenter will have significant environmental effects that “will result from the implementation of Amendment 16.” Such effects according to the commenters include excessive pressure on certain stocks, use of gear that is selective for larger fish, and impacts to ESA-listed coho. The draft EA fails to analyze the effects of in-river fishing on ESA-listed species. The Council and NMFS should regulate in-river fisheries. Accountability measures are not adequate because they don't address in-river harvest.

Response: Regulation of in-river fisheries is beyond the scope of Amendment 16, and therefore the EA is not required to address the impacts of in-river fisheries as effects of Amendment 16. Neither the Council nor NMFS have statutory authority to directly regulate in-river fisheries under the Magnuson-Stevens Act, 16 U.S.C. 1800 et seq. The Council's jurisdiction is specifically limited to the area “seaward” of the west coast states (16 U.S.C. section 1852(a)(1)(F)). NMFS' authority to manage fisheries under the MSA is limited to the U.S. EEZ, and with respect to the proposed action is limited to approving or disapproving, and implementing the Council's action in Amendment 16 (18 U.S.C. section 1854). As the commenters point out, federal, state, and tribal fishery managers coordinate their management of the salmon fisheries. Such coordination is necessary as salmon are impacted by fisheries under multiple management jurisdictions, and all of those impacts must be addressed to ensure that escapement goals are met and that the tribes can exercise their fishing rights. However, coordination with the entities that regulate in-river fishing does not bestow upon the Council and NMFS the statutory authority to impose regulations on that fishing. As the regulation of in-river fisheries is beyond the scope of this proposed action, and in any event is beyond the scope of the Council's and NMFS' jurisdiction under the Magnuson-Stevens Act, the extent of NMFS' authority to implement and enforce the Endangered Species Act with respect to in-river fisheries is not relevant to the scope of effects of the proposed action analyzed in the EA for Amendment 16. In-river fisheries, however, are part of the Affected Environment, and a brief description of these fisheries was added to sections 3.4.4.4, 3.4.5.4, 3.4.6.4, and 3.4.7.4 of the EA. The analysis of the effects of Amendment 16 on biological resources was based on spawning escapement relative to the SDC, and therefore accounts for all mortality sources, including in-river fisheries (Tables 4-2 and 4-5 in the EA).

Comment 5: The EA fails to include reasonable alternatives with respect to the Klamath Basin, specifically a spawning escapement target for KRFC higher than 40,700, regulating in-river harvest practices, and improving in-river accountability measures.

Response: The additional alternatives identified are beyond the scope of actions identified in the purpose and need statement. The purpose and need for Amendment 16 was to bring the Salmon FMP into compliance with the amended MSA and NS1 guidelines, particularly requirements for ACLs, accountability measures, and to ensure objective and measureable status determination criteria, which requires management based on MSY. There were no analyses supporting spawning escapement objectives for any purpose other than consistency with MSY. As part of its issue scoping process, the Council directed that conservation objectives should be updated as part of the Amendment 16 process only as necessary to comply with the purpose and need statement. As explained in response to Comment 4, the additional alternatives related to changing in-river harvest methods, timing, and accountability measures are not within the jurisdiction of the Council and NMFS to implement. In-river harvest is regulated by the State of California and the Yurok and Hoopa Valley Tribes. The EA did contemplate and analyze effects from the amount of in-river harvest on the affected environment. Accountability measures are intended to ensure compliance with the established ACLs or to mitigate the adverse affects if there is non-compliance. Mortality from all sources, including all in-river fisheries, is accounted for in assessing compliance with ACLs because the metric is based on spawning escapement.

Comment 6: The EA does not analyze impacts to Klamath sub-basin Chinook populations. The EA should address the disproportionate impact of fishery management on early spawners and propose approaches to quantify and minimize such impacts.

Response: The effects of implementing Amendment 16 on sub-basin populations within the Klamath Basin are acknowledged and assessed by incorporating the analysis from Salmon FMP Amendment 15 into Amendment 16 (section 4.1.5.4). There is insufficient information to analyze the effects of Amendment 16 on Klamath sub-basin populations beyond what is contained in the Amendment 15 analysis; to the extent there are “disproportionate effects” these cannot be quantified.

The focus of the comments seems to be on the adequacy of 40,700 spawners as a management objective, and how that number was derived. The value of the MSY spawning escapement that is included in Amendment 16 (40,700 natural area adult spawners) is based on what is currently the best available science. The MSA requires that management decisions be based on the best available science. The FMP as amended by Amendment 16 provides a process for changing estimates of MSY if additional information suggests a better estimate is available, or sub-basin specific management objectives could be adopted; however, there is not sufficient information available on which to base such changes at this time.

Comment 7: An escapement objective of 40,700 KRFC spawners is an improvement, but inadequate. Shasta River Basin needs at least 10,000 spawners, and is unlikely to achieve that with an escapement of 40,700 for the entire Klamath-Trinity system. The 40,700 escapement goal does not allow for reaching historical Chinook numbers in the Shasta River.

Response: NMFS and the Council are unaware of any information supporting an objective of 10,000 spawners for the Shasta River. There is no identified objective for the Shasta River in the Salmon FMP, and there is insufficient information on which to base management of the fisheries to achieve an annual Shasta River-specific spawning escapement goal. Therefore, the Council manages Klamath Basin on an aggregate basis using the best available science. The currently available habitat is not capable of supporting historic fish abundance due to dam construction and habitat degradation throughout the Klamath-Trinity Basin. As evidence, relatively large spawning escapements in recent years have not resulted in larger than average subsequent broods (Klamath River fall Chinook stock-recruitment analysis, STT 2005). The best available science indicates that 40,700 is an appropriate spawning escapement.

Comment 8: The KRFC escapement objectives considered in the EA do not provide enough fish returning to allow those involved in habitat restoration efforts to see improvement in fish abundance.

Response: The comment suggests that the escapement objective be set to provide an adequate number of returning fish to demonstrate progress resulting from habitat improvement efforts in the Klamath. The criterion is subjective and it is not clear how it could be implemented. Text was added to the EA to note that a larger escapement goal could generally correlate to increased visibility of returning spawners in the Klamath Basin, and that there is likely a relationship between participation in habitat restoration efforts and returning adults, as well as between other aesthetic uses and returning adults (section 4.5.7).

Comment 9: MSY for KRFC is based on recruitment as if all variability were a result of only inland conditions.

Response: The MSY spawning escapement objective is based on both spawner/recruit relationship and an early life history survival term that accounts for both river out-migrant and early ocean entry survival; therefore, the estimate of MSY does not assume survival variability is only the result of inland conditions (Klamath River fall Chinook stock-recruitment analysis, STT 2005).

Comment 10: Including first generation hatchery strays ( e.g., Iron Gate Hatchery fish spawning in Bogus Creek and Trinity River Hatchery fish spawning downstream of the hatchery) in any estimate of “natural spawners” effectively props up natural spawning escapement estimates. First generation hatchery fish spawning naturally should be excluded from reported values for natural spawning escapement.

Response: The spawner escapement portion of the KRFC conservation objective is, and has been, specified in terms of natural-area adults and not natural-origin adults. The spawner/recruit relationship used to specify MSY spawning escapement for KRFC is based on the best available science, and provides a statistically significant, scientifically defensible estimate of MSY spawning escapement.

Comment 11: The EA does not analyze effects on marine nutrient cycle.

Response: The marine nutrient cycle is identified as part of the affected environment (section 3.3) and assessed qualitatively in the EA (section 4.3.1).

Comment 12: The draft EA's reliance on previous environmental review documents is inappropriate. Circumstances have changed, specifically regarding the effects of in-river fisheries and habitat improvements in the Klamath Basin.

Response: Use of previous environmental documents is appropriate as long as they are properly incorporated by reference and up to date information is included in the EA or in the referenced documents. The documents referenced in Amendment 16 are all less than 10 years old, and many are updated annually, including the stock assessment and fishery evaluation, which assesses management effectiveness annually. The stock/recruitment analysis for KRFC (Klamath River fall Chinook stock-recruitment analysis, STT 2005) used more recent data than 2000 to derive the 40,700 MSY spawning escapement estimate. The analysis was completed in 2005 and used data through 2004; the 2000 brood was the last complete brood available for that analysis. STT (2005) and the Amendment 15 EA (PFMC and NMFS 2007) were added to the list of documents incorporated by reference and text was added to the final Amendment 16 EA clarifying that the documents referenced in Section 1.4.2 were incorporated by reference.

The FMP describes a process for incorporating new scientific information and methodologies into the annual salmon management process, and Amendment 16 provides for reference points, including S MSY , to be changed in response to new information. Thus, if scientific information becomes available that warrants a reconsideration of reference points specific to the Klamath, this can serve as a basis for reevaluation of those reference points.

Comment 13: Maximum sustainable yield is not adequate to achieve optimum yield, which should take into consideration the need for those living inland in the Klamath Basin to see spawner returns that reflect recovery efforts.

Response: The scope of Amendment 16 did not include revising the current definition of achieving OY for salmon; therefore, considering alternatives for OY was not appropriate as part of this action. The FMP currently defines OY on a coast-wide stock and fishery aggregate basis. Changing the conservation objective of one stock to address OY would not be appropriate given the current definition of OY.

Comment 14: The EA does not analyze the impacts of fishing, particularly in-river fishing practices, on ESA-listed species.

Response: The EA considers the effects of the proposed action on listed species. As stated in the EA (section 3.2), the effects of alternatives on ESA-listed salmon are assessed along with target salmon stocks (section 4.1). To address impacts on ESA-listed species, NMFS undertakes ESA Section 7 consultations. NMFS has issued several biological opinions on the FMP covering salmonid and non-salmonid species that are affected by the ocean salmon fisheries and fisheries are managed to meet standards set forth in those opinions. The proposed action would not change this aspect of the salmon FMP. As discussed in response to Comment 4, regulation of in-river fishing is beyond the scope of Amendment 16, therefore the effects of in-river fishing on ESA-listed species are not effects of this action.

Comment 15: Objection to setting the lower end of the current conservation objective for SRFC ( i.e., 122,000) as S MSY , this effectively changes the conservation objective from a range of 122,000 to 180,000 to a single value of 122,000.

Response: The form of the harvest control rule adopted requires a single value of S MSY upon which to calculate annual management measures, so a single value was adopted based on the 1984 framework amendment. There was no supporting analysis to suggest that a different value was appropriate, and such an analysis was beyond the scope of Amendment 16. The conservation objective as stated in the FMP (Appendix I of the EA) was unchanged at 122,000-180,000 adult spawners and is not changed by the definition of S MSY , which is used to determine the point at which SRFC are overfished, rebuilt, and when de minimis fishing provisions apply. Defining S MSY does not remove the Council and NMFS' ability to structure management measures to target higher escapement levels in response to year-specific conditions. A list of considerations for implementing de minimis fisheries is included in the FMP language (Appendix I) and has been added to the EA (section 2.5.1.6) and the regulatory text at § 660.410 (b).

Comment 16: Managing to the low end of the SRFC conservation objective is not appropriate given that the low end was established due to migratory restrictions imposed by Red Bluff Diversion Dam. The reasonable and prudent alternative in NMFS' 2009 Biological Opinion for the Central Valley Project would require that gates be raised year-round on the dam in order to improve passage. As a consequence, NMFS should set S MSY at 180,000 adult spawners.

Response: There was no scientific support for choosing 180,000 as S MSY . The S MSY value used in the EA is based on the best available science. Amendment 16 provides a mechanism for updating reference points based on new scientific information, when that becomes available.

Comment 17: Even the high end of the SRFC conservation objective range (180,000) may not be appropriate under the “doubling goal” of the Central Valley Project Improvement Act (CVPIA).

Response: As noted in response to the previous comments, the S MSY value used in the EA is based on the best available scientific information. The conservation objective for SRFC is not changed by this action. The “doubling goal” of the CVPIA does not create any specific standards that make a revision to the conservation objective for SRFC necessary or appropriate.

The purpose and need for Amendment 16 was to bring the Salmon FMP into compliance with the MSA, which requires management based on MSY. There is no analysis supporting any specific spawning escapement objective for any purpose other than MSY. Also as noted in response to Comment 16, setting a specific value for S MSY does not remove the Council's ability to structure fisheries to achieve the conservation objective for SRFC.

Comment 18: De minimis fishing provisions could be counterproductive to the “doubling goal” of the CVPIA.

Response: All of the de minimis fishing alternatives are based on management for MSY. Managing for MSY will result in optimal production that the habitat can support. Estimates of MSY are based on long-term average escapement, and some years with escapement below S MSY are expected. The low exploitation rates allowed under the de minimis fishing provisions will not significantly affect achievement of MSY in the long-term, as they are expected to occur infrequently. In applying the de minimis control rules, the Council and NMFS must consider a number of factors related to the continued productivity of the stock, and de minimis exploitation rates must not jeopardize the long term capacity of the stock to produce MSY on a continuing basis. As habitat is improved, estimates of MSY should be reviewed and revised if appropriate to account for the increased capacity of spawning habitat.

Comment 19: Relying on abundance of hatchery stocks to support de minimis fisheries is potentially harmful to genetic and phenotypic diversity in Central Valley Chinook. Statement in EA that egg transfers between hatcheries is viable mitigation for low spawner abundance is flawed.

Response: Hatchery policy is set by CDFG and USFWS, and is therefore outside the scope of Amendment 16. Conservation objectives for hatchery stocks are set by those entities and annual salmon management measures are crafted to meet them. Amendment 16 retains the provision to allow conservation objectives for hatchery stocks to be modified as hatchery policies change.

Comment 20: Contrary to analysis in the EA, San Joaquin River fall-run Chinook could suffer significant impacts under de minimis fishing provisions.

Response: Exploitation rates under de minimis fishing conditions are, by definition, intended to avoid significant impacts. San Joaquin fall Chinook are expected to experience the same ocean exploitation rates, and the same or lower freshwater exploitation rates, as SRFC; therefore the EA correctly assessed the risk to San Joaquin fall Chinook. In addition, the alternatives for de minimis fisheries include consideration of the list of factors currently in the de minimis provision for Klamath River Fall Chinook, adopted as part of Amendment 15. These include the status of sub-stocks and the status of co-mingled stocks. A list of considerations for implementing de minimis fisheries is included in the FMP language (Appendix I) and has been added to the EA (section 2.5.1.6) and the regulatory text at § 660.410 (b).

Comment 21: The draft EA does not “discuss the interplay between ocean harvest and freshwater management” and should do so.

Response: The interaction of ocean and inside fisheries is described in the annual Review of Ocean Fisheries document (PFMC 2011a), which was referenced in the description of the affected environment and incorporated by reference. Language was added to the EA to emphasize the incorporation by reference (section 1.4.2). The analysis of alternatives in Amendment 16 included effects of inside fisheries on spawning escapement, and described the relationship between escapement from ocean fisheries and allowable harvest of tribal and recreational river fisheries in the Klamath Basin.

Text has been added to the EA to note that a larger escapement goal could generally correlate to increased visibility of returning spawners, and that there is likely a relationship between participation in habitat restoration efforts and returning adults, as well as between other aesthetic uses and returning adults (section 4.5.7).

Comment 22: “Producers” (communities and entities where salmon spawn and rear and are produced) should be included in harvest management and should have positions on the PFMC and Klamath Fishery Management Council (KFMC).

Response: The Klamath Act, which established the KFMC, expired on October 1, 2006, and was not reauthorized by Congress. Funding for this program was eliminated and the charter for the KFMC was discontinued. The non-agency PFMC members are nominated by governors of the four states and appointed by the Secretary of Commerce. Most appointed positions are held by representatives of fishery sectors, but that is not a requirement and the PFMC has appointed members that are not associated with commercial, recreational, or tribal fishery sectors. People interested in appointments need to contact the office of their state Governor (for additional information see 50 CFR 600.215). The Council also has advisory bodies with positions reserved for general public and environmental groups. These advisory bodies include the Salmon Advisory Subpanel and the Habitat Committee, and other ad hoc committees. People interested in appointments to advisory bodies need to follow PFMC procedures for nomination ( http://www.pcouncil.org/council-operations/council-and-committees/current-vacancies/ ).

Comment 23: The EA fails to incorporate adaptive management—KRFC escapement should be reviewed and updated.

Response: Adaptive management is inherent in all fishery management plans and the MSA process, as informed by new information and science. Escapement of all managed salmon stocks is reviewed and updated annually in the Review of Ocean Fisheries (SAFE) document ( e.g., PFMC 2011a). In addition, a process for review and updating of stock specific conservation objectives is provided in Amendment 16 and the Salmon FMP. As part of its issue scoping process, the Council directed that conservation objectives should be updated as part of the Amendment 16 process only as necessary to comply with the purpose and need statement. However, the Council noted that development and review of conservation objectives for stocks should be pursued through the Salmon Methodology Review process on a priority basis as adequate information becomes available.

Comment 24: The Yurok and Hoopa Valley tribes submitted comments focused primarily on Klamath River fall Chinook. The tribes generally supported Amendment 16 including most aspects of the control rule and the proposal to increase the S MSY based conservation objective to 40,700. However, both tribes expressed concern that the control rule for Klamath River fall Chinook and the resulting allowance for non-zero de minimis exploitation rates at low abundance levels could adversely affect sub-stocks. The tribes' comments refer to the analysis done in conjunction with Amendment 15 that highlighted the increased risk to sub-stocks as abundance falls below approximately 20,000 adult spawners. Both tribes support use of the control rule in most part, but requested that de minimis fishing be reduced to zero when abundance is less than 1/2 S MSY or 20,350 (Yurok Tribe) or 22,000 (Hoopa Valley Tribe). As an alternative, the Yurok Tribe requested that the final rule be modified to include qualitative considerations similar to those used in Amendment 15 indicating that there would be little or no harvest opportunity when abundance is projected to be below 1/2 S MSY.

Response: The effects of implementing Amendment 16 on sub-basin populations within the Klamath Basin, including the de minimis fishing provisions, are acknowledged and considered in the EA by incorporating the analysis from Salmon FMP Amendment 15 into Amendment 16. The control rule proposed in Amendment 16 is more prescriptive than that contained in Amendment 15. Unlike Amendment 15 the control rule defines maximum allowable exploitation rates at all abundance levels. The de minimis provisions were designed, in part, to account for impacts in fall season fisheries that sometimes occur before the status of the returning brood is known. In addition, the control rule lists several qualitative considerations that the Council must consider when recommending de minimis exploitation rates in a given year. The first of these considerations relates to genetic concerns and the effect to sub-stocks at low abundance. Another consideration, and one reason for providing qualitative considerations for some limited harvest at low abundance, relates to a recognition of the minimal needs for tribal fisheries. NMFS believes that the effect of these considerations are largely coincident with the views expressed by the tribes and that in fact there would be little or no opportunity for harvest at abundance levels that are on the order of 20,000 fish or less. It is worth noting that there has never been a forecast of abundance as low as 22,000. Nonetheless, NMFS has added language to the final rule in response to the tribes' request to emphasize this expectation.

The Council considered alternative versions of the control rule that would have reduced de minimis fishing to zero at various levels of abundance. However, the Council ultimately recommended an alternative that allowed for consideration of some limited, non-zero harvest at low abundance coupled with the qualitative considerations that would be used for making the necessary recommendations. NMFS' decision here is whether or not to approve Amendment 16, including the de minimis fishing provisions, based on assessment of whether the amendment is consistent with the MSA and other applicable law. NMFS cannot, in this action, modify the Amendment. NMFS believes that the control rule recommended for Klamath River fall Chinook through Amendment 16, including the de minimis fishing provisions, are consistent with the requirements of the MSA, including the requirement to maintain the capacity of the stock to produce MSY on a continuing basis, and other applicable laws. As noted above, NMFS has modified the regulatory text in this final rule to emphasize our expectation that there will be little or no harvest when abundance is very low. The distinction between the zero levels of fishing that the tribes request under rare circumstances, and the single digit exploitation rates that might be allowed under Amendment 16 is inconsequential from a biological perspective and does not affect the general conclusion regarding the capacity of the stock to produce MSY on a continuing basis.

This final rule includes changes to the existing regulations at 50 CFR 660.401 et seq. to implement Amendment 16 and additional updates. These are largely unchanged from the proposed rule; those that have changed from the proposed rule are described below.

• § 660.408—Annual actions

Language reinforcing that ACLs are not to be exceeded even when de minimis control rules apply has been added.

• § 660.410—Conservation objectives, ACLs, and de minimis control rules

Section title is changed and language added to include additional considerations for implementation of de minimis control rules and to clarify the relationship between de minimis control rules, ACLs and conservation objectives.

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 16, 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.

An EA has been prepared for Amendment 16; a copy of the EA is available online at http://www.pcouncil.org/. The EA includes a regulatory impact review.

NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) for this action to assess its impact on small entities. The FRFA incorporates the initial regulatory flexibility analysis (IRFA) prepared for the draft EA, summarizes the significant issues raised by the public comments in response to the IRFA, responds to those comments, and summarizes of the analyses completed to support the action. A copy of the FRFA is available from NMFS (see ADDRESSES ) and a summary of the FRFA, per the requirements of 5 U.S.C. 604(a), follows.

Amendment 16 to the Salmon FMP establishes conservation and allocation guidelines for annual management of salmon off the coasts of Washington, Oregon, and California. This framework allows the Council to develop measures responsive to stock status in a given year. Section 3 of the Salmon FMP describes the conservation objectives for Salmon FMP stocks necessary to meet the dual MSA objectives of obtaining optimum yield (OY) from a fishery while preventing overfishing. Each stock has a specific objective, generally designed to achieve MSY, maximum sustained production (MSP), or in some cases, an exploitation rate to serve as an MSY proxy.

The Salmon FMP under Amendment 16 also specifies criteria to determine when overfishing may be occurring and when a stock may have become overfished. The Salmon FMP also specifies required actions when these conditions are triggered. Amendment 16 will bring the Salmon FMP into compliance with the MSA, as amended in 2007, and the revised NS1Gs, by developing and implementing ACLs and AMs to prevent overfishing on stocks in the fishery to which MSA section 303(a)(15) applies, ensure “measurable and objective” SDC for stocks in the fishery, and define the control rules under which de minimis fishing opportunity would take place consistent with NS1.

The Pacific Fishery Management Council's “Review 2010 Ocean Salmon Fisheries” provides the following economic snapshot of the 2010 fishery. Total 2010 ex-vessel value of the Council-managed non-Indian commercial salmon fishery was $7.15 million, which is the fifth lowest on record, but more than four times above its 2009 level of $1.5 million. California had its first commercial salmon fishery since 2007. The 2010 ex-vessel value of the commercial fishery was 28 percent below the 2005-2009 inflation-adjusted average of $10 million and 88 percent below the 1979 through 1990 inflation-adjusted average of $59.3 million. Based on Pacific Coast Fisheries Information Network (PacFIN) data, a total of 641 vessels participated in the non-tribal West Coast commercial salmon fishery in 2010. This is more than double the number that participated in 2009 (313), and nearly triple the number in 2008. However the 2010 total was down 36 percent from 2007's total of 1,007 vessels.

The preliminary number of vessel-based ocean salmon recreational angler trips taken on the West Coast in 2010 was 182,900, a decrease of three percent from 2009, and 70 percent below the 1979 through 1990 average. Compared with 2009, preliminary estimates of the number of trips taken in 2010 decreased by 37 percent in Oregon and 18 percent in Washington. California effort was up substantially since the sport fishery was not restricted to a 10-day fishery in the Klamath Management Zone as it was in 2009; however it was still severely depressed compared to historic levels. Recreational salmon fishing takes place primarily in two modes, (1) anglers fishing from privately owned pleasure crafts, and (2) anglers employing the services of the charter boat fleet. In general, success rates on charter vessels tend to be higher than success rates on private vessels. Small amounts of shore-based effort directed toward ocean area salmon occur, primarily from jetties and piers. Coastwide, the proportion of angler trips taken on charter vessels in 2010 was relatively stable at 24 percent compared with 23 percent in 2009; however, underlying this trend was a decline in the proportion of charter trips in Oregon and increases in California and Washington. During 2010, the Review indicates that there were 465 charterboats that participated in the 2010 fishery.

While some of the treaty Indian harvest was for ceremonial and subsistence purposes, the vast majority of the catch was commercial harvest. For all of 2010 the preliminary ex-vessel value of Chinook and coho landed in the treaty Indian ocean troll fishery was $1.8 million, compared with the ex-vessel value in 2009 of $1.0 million. According to a Northwest Indian Fisheries Commission representative, the tribal fleet consists of 40 to 50 trollers. The commercial entities directly regulated by the Pacific Council's Fishery Management Plan are non-tribal commercial trollers, tribal commercial trollers, and charterboats. During 2010, these fleets consisted of 641 non-tribal trollers, 40 to 50 tribal trollers, and 465 charterboats.

Total West Coast income impact associated with recreational and commercial ocean salmon fisheries for all three states combined was estimated at $25.5 million in 2010. This was 46 percent above the estimated 2009 level of $17.4 million. 2010 had the third lowest income impacts on record, with 2008 having the lowest on record at $7.5 million and 2009 the second lowest (adjusted for inflation).

The key components of Amendment 16 are administrative; as they are revisions to the key components of the process by which the Council and NMFS make decisions on how best to manage various stocks in the fishery. These key components include defining what stocks are in the fishery; how these stocks may be organized into stock complexes, the treatment of international stocks, revising the stock status determination criteria including definitions of overfishing, ABC, and ACL reference points; and revising de minimis fishing provisions to allow for more flexibility in setting annual regulations when the conservation objectives for limiting stocks are projected not to be met, and provide opportunity to access more abundant salmon stocks that are typically available in the Council management area when the status of one stock may otherwise preclude all ocean salmon fishing in a large region. This action revises the process of how conservation and management decisions will be made; it contains no actual application of the methods to set ABC, ACL, or OFL or the management measures ( e.g. closed seasons, area closures, bag limits, etc. ) to keep the fishery within the ACL and other conservation objectives to assure that overfishing does not occur. As a result there are no immediate economic impacts to evaluate. These will occur when the new process is actually applied in future actions and the economic impacts will be evaluated then.

However, the EA did undertake an economic analysis of the expected effects of the preferred action and options relative to “No Action” alternative and presented the following conclusions. The proposed alternatives for classifying the stocks in the FMP will have no economic impacts, as there are no biological implications to designating stocks “in the fishery” and “ecosystem components,” as compared with the no action Alternative. Proposed alternatives for SDC have no significant biological or economic impacts. The stocks have had low frequency of experiencing overfishing in the past, and many of the current control rules clearly prevent fishing at or above F MSY . It has been rare that stock abundance or other constraints on the fishery have created opportunity for fishing above F MSY in other cases. Identifying clearer criteria with which to determine stock status will more clearly align with the MSA and NS1Gs, and can help managers implement timelier management responses and contribute to ensuring sustainable salmon stock levels to support the fishery, resulting in positive economic effects. The proposed alternatives for implementing ACLs, ABCs, and associated reference points ( i.e., the ACL framework) are similar in nature to the effects of the proposed SDC. Thus, they have no significant biological or economic impacts. In the short term, fisheries may be constrained in a given year to prevent overfishing, but such actions will provide long-term benefits from more sustainable salmon populations to support harvest and recreational opportunities.

Proposed alternatives to identify AMs have no significant biological or economic impacts, compared to the no action alternative. Many of the proposed AMs identified are actions that exist in the FMP currently and are administrative in nature ( e.g., notification). Proposed alternatives for de minimis fishing are not expected to result in significant biological or economic effects. However, providing for de minimis fishing will afford more opportunities for harvest, consistent with National Standard 8, and achieve optimum yield for the fishery consistent with NS1. Therefore, there are projected positive economic benefits of the proposed action by allowing some minimal harvest of weaker stocks in an effort to harvest healthier, abundant stocks in the mixed stock fishery.

The commercial entities directly regulated by the Pacific Council's Fishery Salmon Management Plan are non-tribal commercial trollers, tribal commercial trollers, and charterboats. During 2010, these fleets consisted of 641 non-tribal trollers, 40 to 50 tribal trollers, and 465 charterboats. A fish-harvesting business is considered a “small” business by the Small Business Administration (SBA) if it has annual receipts not in excess of $4.0 million. For marinas and charter/party boats, a small business is one with annual receipts not in excess of $6.5 million. All of the businesses that would be affected by this action are considered small businesses under SBA guidance. Tribal and non-tribal commercial salmon vessel revenues averaged approximately $13,000 in 2010 (Review of 2010 Ocean Salmon Fisheries). Charterboats participating in the recreational salmon fishery in 2000 had average revenues ranging from $7,000 to $131,000, depending on vessel size class (Pacific States Marine Fisheries Commission study). These figures remain low, and NMFS has no information suggesting that these vessels have received annual revenues since 2000 such that they should be considered “large” entities under the RFA. As these average revenues are far below SBA's thresholds for a small entities, NMFS has determined that all of these entities are small entities under SBA's definitions.

The economic analysis does not highlight any significant impact upon small businesses. The key components of Amendment 16 are administrative; as they are revisions to the key components of the process by which the Council and NMFS make decisions on how best to manage various stocks in the fishery. As a result there are no immediate economic impacts to evaluate. These will occur when the new process is actually applied in future actions, and the economic impacts will be evaluated then. Consequently, the regulations are not expected to meet any of the tests of having a “significant” economic impact on a “substantial number” of small entities. The comments that NMFS received on this final rule are discussed above. None of these comments addressed the IRFA. There are no additional projected reporting, record-keeping, and other compliance requirements of this final rule not already envisioned within the scope of current requirements. References to collections-of-information made in this action are intended to properly cite those collections in Federal regulations, and not to alter their effect in any way. No Federal rules have been identified that duplicate, overlap, or conflict with this action.

NMFS has issued ESA biological opinions that address the impacts of the Council managed salmon fisheries on listed salmonids as follows: March 8, 1996 (Snake River spring/summer and fall Chinook and sockeye), April 28, 1999 (Oregon Coast natural coho, Southern Oregon/Northern California coastal coho, Central California coastal coho), April 28, 2000 (Central Valley spring Chinook), April 27, 2001 (Hood Canal summer chum 4(d) limit), April 30, 2004 (Puget Sound Chinook), June 13, 2005 (California coastal Chinook), April 28, 2008 (Lower Columbia River natural coho), and April 30, 2010 (Sacramento River winter Chinook, Lower Columbia River Chinook; and listed Puget Sound yelloweye rockfish, canary rockfish, and bocaccio). NMFS reiterates its consultation standards for all ESA-listed salmon and steelhead species in their annual Guidance letter to the Council. In 2009, NMFS consulted on the effects of fishing under the Salmon FMP on the endangered Southern Resident Killer Whale Distinct Population Segment (SRKW) and concluded the salmon fisheries were not likely to jeopardize SRKW (biological opinion dated May 5, 2009). NMFS previously concluded that Pacific Coast salmon fisheries would have no effect on ESA-listed North American green sturgeon (biological opinion dated April 30, 2007) or Pacific eulachon (biological opinion dated April 30, 2010). These biological opinions are available online ( http://www.nwr.noaa.gov/Salmon-Habitat/ESA-Consultations/Biological-Opinions.cfm ).

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with Tribal officials from the area covered by the FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian Tribe with Federally recognized fishing rights from the area of the Council's jurisdiction. In addition, a Tribal representative served on the committee appointed by the Pacific Council to develop Amendment 16.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

Federal regulations at 50 CFR parts 679 and 680 implement the FMP and govern the groundfish fisheries in the GOA. The North Pacific Fishery Management Council (Council) prepared the FMP, and NMFS approved it under the Magnuson-Stevens Fishery Conservation and Management Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The final rule implementing Amendment 83 to the FMP was published in the Federal Register on December 1, 2011 (76 FR 74670) and is effective January 1, 2012. Amendment 83 to the FMP allocates the Western and Central GOA Pacific cod total allowable catch (TAC) limits among various gear and operational sectors. Sector-level allocations will limit the annual amount of Pacific cod that each sector is allowed to harvest. A complete description of the purpose and background of Amendment 83 is in the proposed rule published for that action (76 FR 44700, July 26, 2011), as well as in the final rule noted above.

Amendment 83 was adopted by the Council in December 2009 to supersede the current inshore/offshore processing allocation of Western and Central GOA Pacific cod. Under the inshore/offshore management regime, 90 percent of the Western, Central, and Eastern TAC is allocated to vessels catching Pacific cod for processing by the inshore component and 10 percent to vessels catching Pacific cod for processing by the offshore component. The inshore component is composed of three types of processors: (1) Shoreside plants, (2) stationary floating processors, and (3) vessels with catcher/processor (C/P) endorsements less than 125 ft (45.7 m) in length overall (LOA) that process less than 126 mt (round weight) per week of inshore pollock and Pacific cod, combined. Catcher vessels operating inshore component use a variety of gear types, and vary widely in size. The offshore component is comprised of C/Ps, which catch and process fish, and motherships, which take deliveries of fish from catcher vessels. The Council recognized that competition among participants in the Western and Central GOA Pacific cod fisheries has intensified in recent years. Because the TACs are not divided among gear or operation types, there is a derby-style race for fish and competition among the various gear types for shares of the Pacific cod TACs.

Amendment 83 divides the Western and Central GOA Pacific cod TACs among various gear and operation types, based primarily on historical dependency and use by each sector, while also considering the needs of fishing communities. Amendment 83 does not establish sector allocations in the Eastern GOA. Historically, the Pacific cod TAC is much smaller in the Eastern GOA management area. In recent years, only a small proportion of the annual TAC has been harvested. Fishing sector characteristics also are different, as fishing with trawl gear is prohibited in the Southeast Outside district of the Eastern GOA. The changes implemented under Amendment 83 are intended to enhance stability in the fishery by enabling operators within each sector to plan harvesting or processing activity during a fishing year, reduce competition among sectors, and preserve the historical division of catch among sectors, while providing opportunities for new entrants in these fisheries.

Based on the approval of Amendment 83 and its implementing regulations at 50 CFR part 679 (effective January 1, 2012), NMFS is revising the final 2011 and 2012 specifications for Pacific cod in the GOA. In the Central GOA, the annual Pacific cod TAC must be apportioned between vessels using jig gear, catcher vessels (CVs) less than 50 feet length overall using hook-and-line gear, CVs equal to or greater than 50 length overall using hook-and-line gear, catcher/processors (C/Ps) using hook-and-line gear, CVs using trawl gear, C/Ps using trawl gear, and vessels using pot gear. In the Western GOA, the Pacific cod TAC must be apportioned between vessels using jig gear, CVs using hook-and-line gear, C/Ps using hook-and-line gear, CVs using trawl gear, and vessels using pot gear. In the Eastern GOA, the 2012 Pacific cod TAC will still be apportioned seasonally between the inshore and offshore components.

With this final rule, NMFS revises those sections of the text and the tables in the final 2011 and 2012 harvest specifications for groundfish in the GOA (76 FR 11111, March 1, 2011) that change as the result of the final rule implementing Amendment 83. This includes Tables 8, 15, and 18 originally published in the final 2011 and 2012 harvest specifications for the GOA (available at the NMFS, Alaska Region Web site: http://www.alaskafisheries.noaa.gov/frules/76fr11111.pdf ). This final rule uses the same table numbers that were used in the final 2011 and 2012 harvest specifications. This action also adds a new table, Table 26, for the new halibut prohibited species catch (PSC) apportionment between hook-and-line CVs and hook-and-line C/Ps that was established as part of Amendment 83.

This final rule is necessary to ensure that appropriate allocations will be in effect for the beginning of the 2012 fishing year for those fishery participants affected by the Pacific cod sector allocations established under Amendment 83. These allocations also will be incorporated in future harvest specification for the Alaska groundfish fisheries.

This action revises the Pacific cod allocations in Table 8 by incorporating the sector splits established for the various gear and operational modes in the Western and Central GOA. It eliminates the inshore and offshore sector allocations, with the exception of the Eastern GOA. The Pacific cod TAC in the Eastern GOA will continue to be apportioned to vessels catching Pacific cod for processing by the inshore (90 percent) and offshore (10 percent) components as required by § 679.20(a)(6)(ii).

The Pacific cod TAC for the Western and Central GOA is divided as follows. First, the jig sector receives 1.5 percent of the annual Pacific cod TAC in the Western GOA and 1.0 percent of the annual Pacific cod TAC in the Central GOA, as required by § 679.20(c)(7). This annual allocation is further apportioned between the A season (60 percent) and B season (40 percent) as required by § 679.20(a)(12)(i). NMFS allocates the remainder of the annual Pacific cod TAC based on gear type, operation type, and vessel length overall in the Western and Central GOA seasonally as required by § 679.20(a)(i)(12)(A) and (B). Table 8 lists the seasonal apportionments and allocations of the 2012 GOA Pacific cod TACs.

This action revises the final 2012 GOA non-exempt American Fisheries Act (AFA) CV groundfish harvest sideboard limits, also known as sideboards. These limits are established by § 679.64. Sideboard limits are necessary to protect the interests of fishermen and processors who do not directly benefit from the AFA from those fishermen and processors who receive exclusive harvesting and processing privileges under the AFA, typically by limiting access to non-pollock groundfish fisheries. AFA CVs are subject to harvesting sideboards unless exempted from such limits through the criteria established in § 679.64(b)(2). Thus, the vessels to which sideboards do apply are known as “non-exempt AFA CVs.”

This action revises the Pacific cod sideboards in Table 15 of the final 2011 and 2012 harvest specifications (76 FR 11111, March 1, 2011). The Pacific cod sideboards are revised by combining the Western and Central GOA inshore and offshore apportionments into a single apportionment, further divided by season. This reduces the number of non-exempt AFA CV sideboards in these two areas to four sideboards, rather than eight prior to Amendment 83. The Eastern GOA Pacific cod sideboards are not revised.

These sideboard revisions are based on changes implemented under Amendment 83. The Council recommended sideboard allocations for the non-exempt AFA CVs and non-AFA crab vessels that now supersede the inshore/offshore processing sideboards established under the AFA and Crab Rationalization Program. These sideboards are calculated annually as part of the harvest specification process. Non-exempt AFA CV sideboards are now calculated as area-specific sideboard accounts, rather than inshore and offshore sideboards in each respective Western and Central GOA regulatory areas. The Council recognized that in recent years the offshore sideboard allocations have not been fully harvested, while inshore allocations are typically fully caught. The intent of combining the two sideboard categories into a single sideboard for each regulatory area is to make the offshore sideboard allocation available to the CVs historically associated with the inshore processing components. The new, combined sideboard amounts will continue to be apportioned seasonally. This action revises only the Pacific cod sideboards in Table 15; however, the entire suite of species and sideboards in the table are re-published in order to eliminate potential confusion that the other sideboards specified in Table 15 are no longer effective.

The following Table 15 replaces Table 15 in the final 2011 and 2012 GOA harvest specifications (76 FR 11111, March 1, 2011).

This action also revises the final 2012 GOA non-AFA crab vessel groundfish harvest limits. Such limits preclude vessels that benefit from exclusive crab harvesting privileges under the Bering Sea and Aleutian Islands Crab Rationalization Program from expanding their participation in the GOA groundfish fisheries. This action revises the Pacific cod sideboards in Table 18 of the final 2011 and 2012 harvest specifications (76 FR 11111; March 1, 2011). Under Amendment 83 (76 FR 74670, December 1, 2011), the non-AFA crab vessel sideboards for the inshore and offshore components in the Western and Central GOA were combined. These combined sideboards must then be allocated to sectors as required by the final rule implementing Amendment 83. Thus, NMFS must specify revised non-AFA crab vessel sideboard limits in the Western and Central GOA.

The non-AFA crab vessel Pacific cod sideboards are revised by apportioning the Pacific cod sideboards for the Western and Central GOA among gear and operational sectors, as well as seasons. This change eliminates the inshore and offshore area and seasonal apportionments, and replaces them with sector-level area and seasonal apportionments. The Eastern GOA Pacific cod sideboards are not revised, and continue to be apportioned between the inshore and offshore components.

The basis for these sideboard limits is described in detail in the final rules implementing the Crab Rationalization Program (70 FR 10174, March 2, 2005) and Amendment 83 (76 FR 74670, December 1, 2011). Table 18 lists the revised 2012 groundfish sideboard limitations for non-AFA crab vessels. It replaces Table 18 in the final 2011 and 2012 GOA harvest specifications (76 FR 11131-11132, March 1, 2011). All targeted or incidental catch of sideboard species made by non-AFA crab vessels or associated License Limitation Program groundfish licenses will be deducted from these sideboard limits. This action revises only the Pacific cod sideboards in Table 18; however, the entire suite of species and sideboards in the table are re-published in order to eliminate potential confusion that the other groundfish sideboards specified in Table 18 are no longer effective.

Section 679.21(d) establishes annual halibut PSC limit apportionments for trawl and hook-and-line gear. The trawl gear apportionment is further divided seasonally and between the deep-water and shallow-water species categories. The hook-and-line gear apportionment is divided seasonally, and also between the demersal shelf rockfish (DSR) fishery and the remaining groundfish fisheries. This action revises the annual hook-and-line gear “other than DSR” halibut PSC limit to the “other hook-and-line fisheries” by dividing the annual halibut PSC limit between the hook-and-line CV and C/P sectors.

This change is intended to increase the ability of each hook-and-line sector to plan its fishing operations and harvest its respective Pacific cod allocation. Apportioning the halibut PSC limit to hook-and-line CV and C/P sectors will prevent one sector from pre-empting the other sector's fishing season by taking a greater proportion of the hook-and-line halibut PSC limit than expected. These PSC apportionments also will apply to hook-and-line CVs and C/Ps operating in the Eastern GOA; however, the halibut PSC limit apportionments only are derived from Pacific cod TAC allocations to the Western and Central GOA. Annually, NMFS will calculate the halibut PSC limit apportionments for the entire GOA to hook-and-line CVs and C/Ps.

This action adds Table 26 to the final 2011 and 2012 harvest specifications to specify new halibut PSC limits by each hook-and-line sector and by season as required by § 679.21(d)(4)(iii)(B). These changes reflect the halibut PSC allocation revisions made under Amendment 83 (76 FR 74670, December 1, 2011), which modified the “other than DSR” hook-and-line halibut PSC apportionment to the “other hook-and-line fisheries” by dividing it between the two hook-and-line sectors. The halibut PSC limit apportioned to the trawl gear sector was not changed by Amendment 83. Comprehensive changes to GOA halibut PSC limits and apportionments currently are under development and consideration by the Council.

A comprehensive description and example of the calculations necessary to apportion the “other than DSR” hook-and-line halibut PSC limit to the “other hook-and-line fisheries” between the hook-and-line CV and C/P sectors was included in the final rule to implement Amendment 83 (76 FR 74670, December 1, 2011) and is not repeated here. For 2012, NMFS is apportioning halibut PSC limits of 167 mt and 123 mt to the hook-and-line CV and hook-and-line C/P sectors, respectively. In addition, these annual limits are divided into three seasonal apportionments, using seasonal percentages of 86 percent, 2 percent, and 12 percent. These annual limits and seasonal apportionments are shown in Table 26, which augments Table 10 in the final GOA harvest specifications (76 FR 11111, March 1, 2011). Table 26 lists the 2012 annual and seasonal halibut PSC apportionments between the hook-and-line sectors in the GOA.

Section 680.22 provides for the management of non-AFA crab vessel sideboards using directed fishing closures in accordance with § 680.22(e)(2) and (3). The Regional Administrator has determined that the non-AFA crab vessel sideboards listed in Table 18 are insufficient to support a directed fishery and has set the sideboard directed fishing allowance at zero, with the exception of the Pacific cod pot CV sector limits in the Western and Central Regulatory Areas. Therefore, NMFS is prohibiting directed fishing by non-AFA crab vessels in the GOA for all species and species groups listed in Tables 17 and 18, with the exception of Pacific cod sideboard limits established for the pot CV sector in the Western and Central Regulatory Areas.

The following information is a plain language guide to assist small entities in complying with this final rule as required by the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule is necessary to revise final 2012 Pacific cod harvest specifications and halibut PSC limits for the groundfish fishery of the GOA so that these amounts are consistent with new fishery allocations and limitations established under Amendment 83. This action affects all fishermen who participate in the Pacific cod fishery in the GOA. The specific amounts of TAC limits and PSC amounts, and respective allocations thereof, are provided in tabular form to assist the reader. NMFS will announce closures of directed fishing in the Federal Register and in information bulletins released by the Alaska Region. Affected fishermen should keep themselves informed of such closures.

NMFS determined that these revisions to the final 2011 and 2012 harvest specifications are necessary for the conservation and management of the Alaska groundfish fisheries and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

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

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA) finds good cause to waive prior notice and opportunity for public comment on this action as notice and comment is unnecessary. Through this action, NOAA seeks to revise the final 2011 and 2012 GOA harvest specifications consistent with the final rules implementing Amendment 83 to the FMP and to ensure that the Pacific cod allocations and halibut PSC limits implemented under Amendment 83 will be effective at the beginning of the 2012 fishing year. Prior notice and opportunity for public comment on this action is unnecessary because the revisions being made by this action merely update the 2011 and 2012 GOA harvest specifications to reflect allocations and limitations implemented and required by Amendment 83, and which have already been subject to notice and comment.

This action does not revise the final 2011 and 2012 GOA harvest specifications in any substantive manner not previously the subject of notice and comment during the development of Amendment 83. The Pacific cod fisheries in the Western and Central GOA are intensive, fast-paced fisheries. U.S. fishing vessels have demonstrated the capacity to catch the Pacific cod TAC allocations in these fisheries. Any delay in allocating the Pacific cod TACs under Amendment 83 would cause confusion to the industry and potential economic harm through unnecessary discards. Determining which fisheries may close is impossible because these fisheries are affected by several factors that cannot be predicted in advance, including fishing effort, weather, movement of fishery stocks, and market price. Furthermore, the closure of one fishery has a cascading effect on other fisheries by freeing up fishing vessels, allowing them to move from closed fisheries to open ones, increasing the fishing capacity in those open fisheries and causing them to close at an accelerated pace.

In fisheries subject to declining sideboards, a failure to implement the updated sideboards before initial season's end could preclude the intended economic protection to the non-sideboarded sectors. Conversely, in fisheries with increasing sideboards, economic benefit could be precluded to the sideboarded sectors.

The AA also finds good cause to waive the 30-day delay in the effective date requirement of 5 U.S.C. 553(d). The waiver of the 30-day delay in effective date requirement of 5 U.S.C. 553(d) is necessary to ensure that the allocations and limitations required under Amendment 83 will be effective at the beginning of the 2012 fishing year and to provide the regulated community with timely, adequate, and accurate information necessary to allow the industry to plan for the fishing season, to conduct orderly and efficient fisheries, and to avoid potential disruption to the fishing fleet and processors. Per the implementing requirements of Amendment 83 to the GOA FMP (76 FR 74670, December 1, 2011), the Pacific cod TAC apportionments between the inshore and offshore components in the Western and Central Management Areas are superseded and replaced by apportionments among various gear and operational sectors. Absent waiver of the 30-day delay in effective date, the Pacific cod fisheries in the Western and Central Management Areas would be subject to obsolete management measures for a several weeks at the onset of the 2012, as the regulations requiring NMFS to apportion the Pacific cod TAC limits in these two areas to the inshore and offshore components (§ 679.20(a)(6)(ii)) no longer exist as of January 1, 2012.

NMFS prepared a Final EIS for the harvest strategy implemented by the annual harvest specifications and made it available to the public on January 12, 2007 (72 FR 1512). On February 13, 2007, NMFS issued the Record of Decision (ROD) for the Final EIS. Copies of the Final EIS and ROD for this action are available (see ADDRESSES ). NMFS also prepared an EA in conjunction with Amendment 83 to the GOA FMP (See ADDRESSES ).

Two separate final regulatory flexibility analyses (FRFAs) were prepared to evaluate the impacts on small entities resulting from (1) alternative harvest strategies employed in establishing the final 2011 and 2012 harvest specifications and (2) alternatives considered during the development and approval of Amendment 83. Both of these FRFAs met the statutory requirements of the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 601-612). A summary of each FRFA was published with its relevant final rule and is not repeated here. The summary of the FRFA supporting the final 2011 and 2012 harvest specifications was published March 1, 2011 (76 FR 11111), and the summary of the FRFA supporting Amendment 83 to the FMP was published December 1, 2011 (76 FR 74670).

A final rule was published in the Federal Register on December 1, 2011 (76 FR 74670) that revises several sections of regulations that pertain to the management of Pacific cod in the Gulf of Alaska Management Area (GOA). The final rule allocates total allowable catch of Pacific cod to various gear and operational type sectors in the Western and Central GOA Pacific cod fisheries that are managed under the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP).

The error is located in a prohibition at § 679.7 that limits access to the Pacific cod parallel fishery for federal fishery participants. This prohibition precludes federally permitted vessels that do not have a properly endorsed license limitation program license from participating in the Western or Central GOA Pacific cod parallel fishery. The error occurred in limiting the scope of the prohibition to vessels that “catch and process” only; thus the regulations omit vessels that solely directed fish for Pacific cod and do not process. As written, the regulation is inconsistent with the Council's recommendations under Amendment 83, the environmental analysis, regulatory impact review, final regulatory flexibility analysis, and the preambles to both the proposed and final rules.

The correction will amend § 679.7(b)(6) to replace the words “catch and process” with “directed fish for”. The correction will ensure that the prohibition applies to both catcher and catcher processor vessels, as intended by the Council's recommendations and the Secretarial action under Amendment 83.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be unnecessary and contrary to the public interest. This error must be corrected immediately to clarify the regulatory prohibition's application. Left uncorrected, the prohibition purports to apply only to catcher processor vessels fishing for Pacific cod in the GOA, when the prohibition was clearly meant to apply to catcher vessels, too. The correction will ensure that NMFS can enforce the prohibition against both catcher and catcher processors, as intended. If the effective date for these corrections is delayed to solicit prior public comment, this technical error will not be corrected by the effective date of this final rule, thereby undermining the conservation and management objectives of the FMP. The AA further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the thirty (30) day delayed effectiveness period for the reasons stated above.

NMFS is correcting this error and is not making substantive changes to the document in rule FR Docket No. 100107012-1689-03 published on December 1, 2011 (76 FR 74670).

Accordingly, the final rule published on December 1, 2011 (76 FR 74670), to be effective January 1, 2012, is corrected as follows:

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

The 2012 Atka mackerel TAC in the BSAI was set at 36,800 metric tons (mt) in the Eastern Aleutian District and the Bering Sea subarea, 10,293 mt in the Central Aleutian District, and 1,150 mt in the Western Aleutian District by the final 2011 and 2012 harvest specification for groundfish in the BSAI (76 FR 11139, March 1, 2011).

In December 2011, the Council recommended the 2012 Atka mackerel TACs of 38,500 metric tons (mt) in the Eastern Aleutian District and the Bering Sea subarea, 10,763 mt in the Central Aleutian District, and 1,500 mt in the Western Aleutian District. These amounts are higher in the Eastern Aleutian District and Bering Sea subarea and Central Aleutian District, and the same in the Western Aleutian District than established by the final 2011 and 2012 harvest specification for groundfish in the BSAI (76 FR 11139, March 1, 2011). The TACs recommended by the Council are based on the Stock Assessment and Fishery Evaluation report (SAFE), dated November 2011, which NMFS has determined is the best available scientific information for this fishery.

Regulations at § 679.20(a)(8)(ii)(A) apportion the Atka mackerel TAC allocated to the BSAI Atka mackerel trawl fisheries seasonally to distribute catch over time because Atka mackerel is a principal prey species for Steller sea lions listed as endangered under the Endangered Species Act. The first seasonal apportionment can be harvested quickly, and must reflect the TAC based on the best available scientific information to provide the opportunity to harvest available TAC in a manner consistent with the established Steller sea lion protection measures.

In accordance with § 679.25(a)(1)(iii) and (a)(2)(i)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that, based on the November 2011 SAFE report for this fishery, the current BSAI Atka mackerel TAC is incorrectly specified. Consequently, the Regional Administrator is adjusting the 2012 Atka mackerel TACs to 38,500 mt in the Eastern Aleutian District and Bering Sea subarea, 10,763 mt in the Central Aleutian District, and 1,500 mt in the Western Aleutian District.

Pursuant to § 679.20(a)(8), Table 4 of the final 2011 and 2012 harvest specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011) is revised for the 2012 Atka mackerel TAC consistent with this adjustment. Table 4 includes the Steller sea lion protection measures effective January 1, 2011 (75 FR 77535, December 13, 2010), to insure that the BSAI groundfish fisheries off Alaska are not likely to jeopardize the continued existence of the western distinct population segment of Steller sea lions or adversely modify its designated critical habitat.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would require harvests other than the appropriate allocations for Atka mackerel, based on the best scientific information available. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 13, 2011, and additional time for prior public comment would result in conservation concerns for the ESA-listed Steller sea lions.

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

Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until January 13, 2012.

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

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

The 2012 Pacific cod TAC in the BSAI was set at 229,608 metric tons (mt) by the final 2011 and 2012 harvest specification for groundfish in the BSAI (76 FR 11139, March 1, 2011).

In December 2011, the Council recommended a 2012 Pacific cod TAC of 261,000 mt for the BSAI. This amount is more than the 229,608 mt established by the final 2011 and 2012 harvest specification for groundfish in the BSAI (76 FR 11139, March 1, 2011). The TAC recommended by the Council is based on the Stock Assessment and Fishery Evaluation report (SAFE), dated November 2011, which NMFS has determined is the best available scientific information for this fishery.

Regulations at § 679.20(a)(7)(i)(B) apportion the Pacific cod TAC allocated to the Bering Sea directed Pacific cod fisheries seasonally to distribute catch over time because Pacific cod is a principal prey species for Steller sea lions listed as endangered under the Endangered Species Act. The first seasonal apportionment can be harvested quickly, and must reflect the TAC based on the best available scientific information to provide the opportunity to harvest available TAC in a manner consistent with the established Steller sea lion protection measures.

In accordance with § 679.25(a)(1)(iii) and (a)(2)(i)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that, based on the November 2011 SAFE report for this fishery, the current BSAI Pacific cod TAC is incorrectly specified. Consequently, the Regional Administrator is adjusting the 2012 Pacific cod TAC to 261,000 mt in the BSAI.

Pursuant to § 679.20(a)(7), Table 5b of the final 2011 and 2012 harvest specifications for groundfish in the BSAI (75 FR 11778, March 12, 2010) is revised for the 2012 Pacific cod TAC consistent with this adjustment.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would require harvests lower than the appropriate allocations for Pacific cod, based on the best scientific information available. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 13, 2011, and additional time for prior public comment would result in conservation concerns for the ESA-listed Steller sea lions.

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

Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until January 13, 2012.

This action is required by § 679.22 and § 679.25 and is exempt from review under Executive Order 12866.

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

The 2012 pollock TAC in the Bering Sea subarea was set at 1,253,658 metric tons (mt) by the final 2011 and 2012 harvest specification for groundfish in the BSAI (76 FR 11139, March 1, 2011). In December 2011, the Council recommended a 2012 pollock TAC of 1,200,000 mt for the Bering Sea subarea. This amount is less than the 1,253,658 mt established by the final 2011 and 2012 harvest specification for groundfish in the BSAI (76 FR 11139, March 1, 2011). The TAC recommended by the Council is based on the Stock Assessment and Fishery Evaluation report (SAFE), dated November 2011, which NMFS has determined is the best available scientific information for this fishery.

Regulations at § 679.20(a)(5)(i)(B) apportion the pollock TAC allocated to the Bering Sea directed pollock fisheries seasonally to distribute catch over time because pollock is a principal prey species for Steller sea lions listed as endangered under the Endangered Species Act. The first seasonal apportionment can be harvested quickly, and must reflect the TAC based on the best available scientific information to provide the opportunity to harvest available TAC in a manner consistent with the established Steller sea lion protection measures.

In accordance with § 679.25 (a)(1)(iii) and (a)(2)(i)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that, based on the November 2011 SAFE report for this fishery, the current Bering Sea pollock TAC is incorrectly specified. Consequently, the Regional Administrator is adjusting the 2012 pollock TAC to 1,200,000 mt in the Bering Sea subarea.

Pursuant to § 679.20(a)(5), Table 3 of the final 2011 and 2012 harvest specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011), as adjusted by a reallocation of a portion of the 2011 Aleutian Islands subarea (76 FR 12607, March 8, 2011), is revised for the 2012 pollock TACs consistent with this adjustment.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would require the Bering Sea pollock harvests to be higher than the appropriate allocations for pollock based on the best scientific information available. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of December 13, 2011, and additional time for prior public comment would result in conservation concerns for the ESA-listed Steller sea lions.

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

Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until January 13, 2012.

This action is required by § 679.22 and § 679.25 and is exempt from review under Executive Order 12866.