Background

The regulations in “Subpart-Logs, Lumber, and Other Unmanufactured Wood Articles” (7 CFR 319.40-1 through 319.40-11, referred to below as the regulations) govern the importation of various logs, lumber, and other unmanufactured wood products into the United States. Under § 319.40-9 of the regulations, all regulated articles must be inspected at the port of first arrival. If a regulated article shows any signs of pest infestation, the inspector may require treatment, if an approved treatment exists, or refuse entry of the consignment.

Prior to 2005, wood decorative items and craft products (wooden handicrafts) from China had been entering the United States in increasing quantities. However, between 2002 and 2005, the Animal and Plant Health Inspection Service (APHIS) issued more than 300 emergency action notices for wooden handicrafts from China. Moreover, in 2004, the United States Department of Agriculture (USDA) intercepted live wood-boring beetles, Callidiellum villosulum (Coleoptera: Cerambycidae), on articles manufactured from wood components and imported from China. Subsequent to these interceptions, shipments of the articles were recalled from retail stores. Based on these pest interceptions, in 2005, we suspended the importation of most wooden handicrafts (i.e., all handicrafts made from wooden logs, limbs, branches, or twigs greater than 1 centimeter in diameter) from China until a more thorough evaluation of the pest risks associated with those articles could be conducted.

APHIS prepared a pest risk assessment, titled “Pests and mitigations for manufactured wood décor and craft products from China for importation into the United States,” to evaluate the risks associated with the importation of such wooden handicrafts into the United States from China. We also prepared a risk management document, titled “Pests and mitigations for manufactured wood décor and craft products from China for importation into the United States,” to determine mitigations necessary to prevent pest entry, introduction, or establishment associated with imported wooden handicrafts from China. Based on the conclusions in the pest risk assessment and the accompanying risk management document, we determined that wooden handicrafts could be imported from China provided they met certain requirements for treatment, issuance of a phytosanitary certificate, inspection, and box identification.

Accordingly, on April 9, 2009, we published in the Federal Register (74 FR 16146-16151, Docket No. APHIS-2007-0117) a proposal  1 to authorize the importation of wooden handicrafts from China under those conditions. We solicited comments concerning the proposed rule for 60 days ending June 8, 2009. We received eight comments by that date. They were from the national plant protection organization (NPPO) of China, a State department of agriculture, manufacturers of Chinese wooden handicrafts, a public advocacy organization, and private citizens.

One of the commenters urged us to finalize the proposed rule without change. The remaining commenters provided comments on the rule in general, and requested modifications to certain of its provisions.

Based on one of the comments received on the proposed rule, on September 23, 2010, we published in the Federal Register a supplemental proposal (75 FR 57864-57866, Docket No. APHIS-2007-0117) to modify the heat treatment requirements of the proposed rule. We solicited comments concerning the supplemental proposal for 60 days ending November 22, 2010. We received six comments by that date. They were from State Departments of Agriculture, a manufacturer of wooden picture frames, and two private citizens.

The comments on both the proposed rule and the supplemental proposal are discussed below by topic.

One commenter stated that the measures that we proposed for Chinese wooden handicrafts were not the least restrictive necessary to mitigate the plant pest risk associated with such articles. As a result, the commenter stated that the proposed rule violated World Trade Organization principles.

The provisions of the proposed rule reflect the substantive plant pest risk that wooden handicrafts from China have historically presented, our analysis of the quarantine pests currently known to exist in China, and our determination regarding the likelihood that the importation of wooden handicrafts from China will present a pathway for introducing or disseminating these pests within the United States. Accordingly, the provisions represent the least restrictive measures that we considered possible at the time that we initiated rulemaking for the proposed rule.

That said, in response to comments received on the proposed rule, we issued the supplemental proposal mentioned above to propose to modify the heat treatment requirements of the proposed rule. We have also determined that one other provision of the proposed rule, which would have required the handicrafts to be accompanied by a phytosanitary certificate issued by the NPPO of China and containing an additional declaration stating that the handicrafts were treated in accordance with the regulations and found free from quarantine pests, is unnecessary. We discuss this change in greater detail later in this document, in the section titled “Comments Regarding Phytosanitary Certificates.”

One commenter stated that it appeared that the greatest remedial measure APHIS would take in response to violations of the proposed rule would be to prohibit the importation of wooden handicrafts from certain manufacturers into the United States. The commenter expressed concern that this would not be a sufficient incentive for manufacturers to adhere to the provisions of the proposed rule, given that these manufacturers currently have little to no access to the U.S. market.

Under the regulations, all wooden handicrafts from China would have to be accompanied by a permit stating the intended treatment for the articles, as well as an importer document or certificate stating that the intended treatment has in fact been applied to the articles. In response to inaccuracies on a permit, importer document, or certificate, APHIS may determine not to accept any further certificates from China, or may not allow the importation of any further wooden handicrafts or regulated articles from China until corrective action acceptable to APHIS establishes that certificates issued in China are accurate. We consider the possibility of such general prohibitions a sufficient incentive for Chinese manufacturers to adhere to the provisions of this rule.

We discuss these possible remedial measures at greater length later in this document, in the section titled “Comments Regarding Phytosanitary Certificates.”

One commenter suggested that the scope of the final rule be expanded to include wooden handicrafts from other countries. The commenter asserted that many countries have plant pests that are identical or similar to those found in China.

To date, only wooden handicrafts from China have been determined to be infested with quarantine pests as a result of an inspection at a port of first arrival. If, in the future, an inspector discovers quarantine pests in or on handicrafts from another country, he or she will prohibit their entry into the United States subject to remedial measures. As a result of such a detection, APHIS may prohibit further importation of all such handicrafts from that country, pending completion of a pest risk analysis. If this analysis concludes that subjecting the handicrafts to the same mitigation measures that we are requiring for wooden handicrafts from China will adequately mitigate the risk associated with their importation, we will initiate rulemaking to amend the regulations accordingly.

One commenter stated that we should take into consideration the potential environmental impact associated with the importation of wooden handicrafts from China.

We evaluated these possible impacts in the environmental assessment that accompanied the proposed rule. Based on the comments we received, we are issuing a finding of no significant impact along with this final rule.

Finally, the NPPO of China requested that we delay the effective date of this rule for one year in order to give the NPPO sufficient time to establish internal policies and procedures to facilitate manufacturers' compliance with the rule's provisions. The NPPO also requested that, during this delay, we authorize the importation of wooden handicrafts from China under the conditions for importation that were in effect prior to 2005.

Because of the significant plant pest risk associated with the importation of wooden handicrafts from China, as evidenced by the more than 300 emergency action notices we issued for such handicrafts between 2002 and 2005, we cannot authorize the importation of wooden handicrafts from China under conditions other than those of this final rule, and, accordingly, cannot grant such a delayed implementation date.

Section 319.40-1 contains definitions for certain terms used in the regulations pertaining to logs, lumber, and other wood articles. We proposed to add a new definition to this section for wooden handicraft. We proposed to define a wooden handicraft as a commodity class of regulated articles derived or made from natural components of wood, twigs, and vines, and including bamboo poles and garden stakes. The proposed definition provided that handicrafts included the following products where wood is present: Carvings, baskets, boxes, bird houses, garden and lawn/patio furniture (rustic), potpourri, artificial trees (typically artificial ficus trees), trellis towers, garden fencing and edging, and other items composed of wood.

We also proposed to revise the definition of regulated article so that articles that contain parts that are either unprocessed or have received only primary processing and are not feasibly separable from the other parts of the articles would be considered regulated articles for the purposes of the regulations. We stated that wooden handicrafts, as we proposed to define them, would always contain such unprocessed or partially processed parts.

It was within the framework of these definitions that we proposed to add a new paragraph (o) to § 319.40-5, which contains importation requirements for specified regulated articles, to authorize the importation of wooden handicrafts from China.

One commenter stated that the definition of wooden handicraft was too broad, and would subject wooden handicrafts from China that are currently authorized for importation into the United States to the provisions of the proposed rule. The commenter suggested that we modify the proposed definition to include only those wooden handicrafts currently prohibited importation into the United States from China, that is, handicrafts more than 1 centimeter in diameter.

We agree with the commenter that the proposed rule would have regulated handicrafts 1 centimeter or less in diameter, and that such handicrafts are currently authorized for importation into the United States.

However, we do not consider it necessary to revise our definition of wooden handicraft in the manner requested by the commenter. The definitions in § 319.40-1 are intended to have general applicability within the subpart, and it is possible that we will initiate rulemaking at some future point to restrict the importation of wooden handicrafts from another country in which quarantine pests are determined to infest handicrafts less than 1 centimeter in diameter. Moreover, if we revised the definition of wooden handicraft to state that it only includes items more than 1 centimeter in diameter, this could be construed to exempt handicrafts less than 1 centimeter in diameter from the definition of regulated article. This is not the case; although such handicrafts are exempt from the requirements of § 319.40-5(o), they are regulated articles, and thus are subject to all other applicable provisions of the subpart.

Accordingly, we have instead decided to modify proposed § 319.40-5(o) to state that the provisions of that paragraph apply only to wooden handicrafts from China that are more than 1 centimeter in diameter, and that articles less than 1 centimeter in diameter, although exempt from the requirements of § 319.40-5(o), are still subject to all other applicable provisions of 7 CFR chapter III.

Two commenters stated that they manufactured wooden handicrafts that fell within the definition of wooden handicrafts, but not the definition of regulated article. The commenters stated that these articles had wooden parts, but that the parts were fully, rather than partially, processed. Both commenters asked if their products would be regulated under the provisions of the proposed rule.

Wooden handicrafts are a class of regulated articles. Accordingly, we will consider an article to be a wooden handicraft only if it also meets the definition of regulated article. Thus, the commenters' products would be exempt from the provisions of this rule.

The same commenters stated that they manufactured handicrafts that fell within the scope of both wooden handicraft and regulated article, but that these handicrafts presented a minimal pest risk and should therefore be exempt from the requirements of § 319.40-5(o).

As we pointed out in our proposed rule, Chinese wooden handicrafts have historically been a pathway for the introduction of quarantine pests into the United States. Based on this plant pest risk and the findings of our pest risk assessment, it would be not be appropriate to exempt certain wooden handicrafts from China from the provisions of the regulations. Indeed, one of these commenters implied that quarantine pests are occasionally discovered on wooden handicrafts at its production facility.

In proposed § 319.40-5(o)(1)(i), we stated that wooden handicrafts would have to be treated with heat treatment in accordance with § 319.40-7(c) or heat treatment with moisture reduction in accordance with § 319.40-7(d). At the time the proposed rule was published, § 319.40-7(c) provided that heat treatment may take place only at a facility where APHIS or an inspector authorized by the Administrator and the national government of the country in which the facility is located has inspected the facility and determined that its operation complies with the treatment specifications as follows: Heat treatment procedures may employ steam, hot water, kilns, exposure to microwave energy, or any other method (e.g., the hot water and steam techniques used in veneer production) that raises the temperature of the center of each treated regulated article to at least 71.1 °C (160 °F) and maintains the regulated article at that center temperature for at least 75 minutes.

Similarly, at the time our proposed rule was published, § 319.40-7(d) provided that heat treatment with moisture reduction may include kiln drying conducted in accordance with the schedules prescribed for the regulated article in the Dry Kiln Operator's Manual, Agriculture Handbook 188, which we have incorporated by reference at § 300.2, or dry heat, exposure to microwave energy, or any other method that raises the temperature of the center of each treated regulated article to at least 71.1 °C (160 °F), maintains the regulated articles at that center temperature for at least 75 minutes, and reduces the moisture content of the regulated article to 20 percent or less as measured by an electrical conductivity meter.

A commenter suggested that APHIS authorize the NPPO of China to approve heat treatment facilities.

Under § 305.8, which contains general heat treatment requirements for 7 CFR chapter III, all heat treatment facilities must be certified by APHIS and facilities located outside the United States must operate in accordance with workplan signed by a representative of the heat treatment facilities located outside the United States, the NPPO of the country of origin, and APHIS. The workplan must contain requirements for equipment, temperature, water quality, circulation, and other measures to ensure that heat treatments are administered properly. Workplans for facilities outside the United States must include trust fund agreement information regarding payment of the salaries and expenses of APHIS employees on site. Workplans must also allow officials of the NPPO and APHIS to inspect the facility to monitor compliance with APHIS regulations. Given these requirements, the NPPO of China will play a significant role, along with APHIS, in the process of certifying heat treatment facilities.

Two commenters stated that the moisture of a regulated article can be reduced to 20 percent or less by a number of means other than heat treatment with moisture reduction, such as drying the article for 24 hours. The commenters suggested that we modify the regulations to incorporate these alternate moisture reduction techniques.

Moisture reduction, in and of itself, is not an adequate mitigation measure for wooden articles. It is efficacious only in conjunction with heat treatment.

One commenter asked whether handicrafts made entirely from lumber that has been treated with heat treatment prior to processing would have to be treated a second time, while another stated that handicrafts that have been treated with heat treatment as part of their partial processing should not have to be treated a second time prior to exportation.

Provided that the lumber or handicrafts have been treated in an approved facility according to an authorized treatment schedule and provided that they have been stored, handled, and safeguarded since treatment in a manner that excludes infestation of the lumber or handicrafts by plant pests, the handicrafts would not have to be treated a second time.

Finally, a commenter pointed out that the proposed rule would require most wooden handicrafts to be treated at a significantly higher temperature and for a longer duration than the temperature and duration recommended by International Standard for Phytosanitary Measures (ISPM) 15, which recommends that wood packaging material (WPM) be treated according to a heat treatment schedule that raises the temperature at the center of the WPM to at least 56 °C and maintains the WPM at that center temperature for at least 30 minutes. 2 The commenter suggested that we should modify the proposed heat treatment requirement for Chinese wooden handicrafts to make it consistent with ISPM 15.

In response to this comment, we reviewed the relevant scientific literature, and determined that treatment consistent with ISPM 15, although effective in neutralizing most of the pests of greatest concern identified in the pest risk assessment as likely to follow the pathway on imported wooden handicrafts from China, would not be effective for emerald ash borer (EAB). Because EAB is an extremely destructive pest, we determined that treatment consistent with ISPM 15 would not adequately mitigate the pest risk.

However, an article by Scott Myers et al. titled “Evaluation of Heat Treatment Schedules for Emerald Ash Borer (Coloeptera: Buprestidae)” in the December 2009 issue of Journal of Economic Entomology   3 led us to reevaluate the treatment schedule in the proposed rule. Myers et al. documented four independent experiments to determine the minimum core temperature and time duration necessary to neutralize EAB on firewood via heat treatment or heat treatment with moisture reduction. As part of the experiments, researchers obtained ash wood from trees showing visible signs of EAB infestation, split the wood, and stored it. They then heat-treated the articles in laboratory facilities (a drying oven and an environmental chamber) at temperatures and durations ranging from 45 to 65 °C and 15 to 60 minutes, respectively. Myers et al. found that the experiments suggested that “a minimum heat treatment of 60 °C for 60 minutes * * * would provide >99.9% control (for EAB) based on probit estimates.”

Since firewood presents similar or greater plant pest risks than wooden handicrafts, we determined that the Myers et al. findings were applicable to wooden handicrafts from China.

This determination led us to issue the September 2010 supplemental proposal. In it, we proposed to modify proposed § 319.40-5(o)(1)(i) to state that wooden handicrafts would have to be treated as specified in the PPQ Treatment Manual  4 in accordance with 7 CFR part 305, and to add heat treatment that raises the core temperature of handicrafts to 60 °C for a duration of 60 minutes to the PPQ Treatment Manual as an approved treatment schedule for wooden handicrafts from China.

One commenter agreed that Myers et al. did in fact provide a basis for such a modification.

In contrast, another commenter raised numerous concerns regarding the appropriateness of our use of Myers et al. as the basis for modifying our proposed heat treatment requirements for wooden handicrafts from China. The commenter pointed out that Myers et al. only sought to determine the minimum heat treatment necessary to neutralize EAB. The commenter stated that, because of its morphology and burrowing patterns, EAB is more susceptible to heat treatment than other plant pests in the families Cerambycidae and Siricidae identified in the pest risk assessment as possibly following the pathway on wooden handicrafts from China.

The commenter provided no information in support of this assertion. Moreover, as documented in the treatment evaluation document that accompanied the supplemental proposal, all scientific evidence available to APHIS suggests that heat treatment consistent with ISPM 15—that is, treatment at a lower temperature and duration than that specified in our supplemental proposal—will kill all other pests identified in the pest risk assessment as likely to follow the pathway on wooden handicrafts from China.

The commenter pointed out that the kilns used by Myers et al. were relatively small, as was the volume of firewood heat-treated in the experiments. The commenter then referred to an article in the October 2010 issue of the Journal of Economic Entomology by P. Charles Goebel et al. 5 as providing evidence that larger volumes of wood products in larger kilns tend to heat more unevenly than smaller products in smaller kilns, and stated that Chinese wooden handicrafts would likely be treated en masse in large-scale kilns. For this reason, the commenter stated that the treatment methods and apparati employed by Myers et al. fundamentally differed from those that manufacturers of Chinese handicrafts are likely to employ, and that the results of Myers et al. could therefore not be considered a reliable indicator of the efficacy of heat treatment of Chinese handicrafts under the provisions of the supplemental proposal.

Our supplemental proposal to modify the heat treatment requirements was based not on an assumption that Chinese manufacturers will reduplicate the methods of Myers et al. but on the conclusion of Myers et al. that heat treatment that “achieves a temperature of 60 °C for 60 minutes * * * would provide >99.9% control (for EAB),” and on our evaluation of the accuracy of the probit estimates that led to this conclusion. (A probit refers to a unit of measurement of statistical probability based on deviations from the normal distribution of results. Probit estimates are often used within statistics to assess the risk of an event occurring in comparison to the likelihood that it will not occur.)

Moreover, as we mentioned above, the regulations require all heat treatments that occur in a foreign country to take place in a facility certified by APHIS, and specify that certification is, in part, predicated upon a facility's having equipment able to meet treatment schedule parameters. This aspect of the certification process would include evaluating the suitability of any large-scale kilns at the facility for conducting the requisite heat treatment.

The same commenter pointed out that the conclusion of Myers et al. was based on probit estimates and mathematical regression, rather than on the actual results of a full range of experiments. The commenter pointed out that Myers et al. did not repeatedly treat firewood at 60 °C for 60 minutes in order to establish the efficacy of such a treatment and questioned the reliability of probit estimates.

In evaluating heat treatment schedules, probit estimates are intended to provide, not the minimum temperature and time duration that may achieve 100 percent mortality of a quarantine pest, but the minimum temperature and time duration that will prove efficacious in doing so with a high degree of statistical reliability. In other words, treatment schedules established through probit estimates are, by design, more conservative, both in temperature and duration, than schedules established through simple reduplication of a particular experiment in order to achieve a minimal efficacious treatment schedule.

The commenter stated that, based on their experiments, Goebel et al. determined that heat treatment at 56 °C for a duration of 82 minutes was not an effective treatment schedule for EAB. The commenter asserted that this determination called into question the efficacy of heat treatment at 60 °C for a duration of 60 minutes for EAB.

The efficacy of heat treatment as a mitigation for a particular pest is dependent not only on the duration of the treatment, but also on the temperature it achieves in the treated article. Accordingly, Goebel et al.' s determination does not necessarily contradict the determination of Myers et al. Moreover, the commenter provided no scientific basis for considering the determinations contradictory.

The same commenter stated that heat treatment at 60 °C for a duration of 60 minutes would not be effective in killing certain types of phytopathogenic fungi.

Phytopathogenic fungi were determined to be likely to follow the pathway on wooden handicrafts from China only if they were introduced by an arthropod vector. Arthropods that could serve as such vectors were considered in the pest risk assessment.

Finally, the commenter stated that heat treatment consistent with ISPM 15 would not be efficacious in treating wooden handicrafts from China for all quarantine pests likely to follow the pathway on the handicrafts.

We agree with the commenter. That is why we proposed to require a more stringent treatment.

As we mentioned in the supplemental proposal, we published a final rule in the Federal Register on January 26, 2010 (75 FR 4228-4253, Docket No. APHIS-2008-0022), that was effective on February 25, 2010, and that, among other things, removed all treatment schedules found in 7 CFR chapter III, including those in § 319.40-7(c) and (d). It replaced all such schedules with a reference to 7 CFR part 305, which contains our regulations governing phytosanitary treatments. Last, it amended 7 CFR part 305 itself to state that all approved treatment schedules for regulated articles are found not in the regulations but in the PPQ Treatment Manual, and to establish a process for adding new treatment schedules for regulated articles to the Treatment Manual.

In accordance with this process, we are modifying proposed § 319.40-5(o)(1) to state that wooden handicrafts from China must be treated as specified in the PPQ Treatment Manual in accordance with 7 CFR part 305. We have also added the relevant treatment schedules for the handicrafts to the Treatment Manual; the schedules for heat treatment and heat treatment with moisture reduction specify that the treatment must raise the core temperature of the handicrafts to 60 °C for a duration of 60 minutes.

In proposed § 319.40-5(o)(1)(ii), we stated that wooden handicrafts that are less than 6 inches in diameter may be treated with methyl bromide fumigation in accordance with 7 CFR part 305, instead of with heat treatment or heat treatment with moisture reduction.

Several commenters stated that methyl bromide is known to deplete the stratospheric ozone layer, and that authorizing its use for treating Chinese wooden handicrafts violates the Montreal Protocol, in which the United States agreed to gradually reduce and ultimately eliminate use of methyl bromide. Another commenter stated that, while the number of applications of methyl bromide that would initially occur under the provisions of the proposed rule would likely be minimal, as the U.S. market for Chinese wooden handicrafts became more established and trade in those commodities increased, the number of applications would also increase. The same commenter stated that such an increase in trade with China could lead other countries to request that APHIS authorize the use of methyl bromide for similar regulated articles. All these commenters asked APHIS not to authorize the use of methyl bromide for wooden handicrafts from China, and to pursue alternate treatment options.

The United States Government encourages methods that do not use methyl bromide to meet phytosanitary standards where alternatives are deemed to be technically and economically feasible. As stated in the proposed rule, APHIS would allow fumigation only for a certain type of wooden handicrafts from China, those less than 6 inches in diameter. All other handicrafts would have to be treated with heat treatment or heat treatment with moisture reduction. In addition, in accordance with Montreal Protocol Decision XI/13 (paragraph 7), APHIS is committed to promoting and employing gas recapture technology and other methods whenever possible to minimize harm to the environment caused by methyl bromide emissions.

However, paragraph 5 of Article 2H of the Montreal Protocol does allow for quarantine and preshipment uses of methyl bromide, and does not specify a maximum number of such applications. Therefore, the provisions of this rule are not in conflict with the protocol.

Finally, in accordance with the overarching objectives of the protocol, APHIS is currently examining the efficacy of other treatment options for Chinese wooden handicrafts. If we determine that treatments exist that are equally efficacious and are available within China, we will amend the Treatment Manual.

One commenter expressed concerns about the human health impacts associated with the use of methyl bromide. The commenter stated that methyl bromide is known to be a carcinogen, skin and lung irritant, and neurotoxin if persons are exposed to it for prolonged periods of time. In a similar manner, another commenter suggested that we modify the proposed rule so that methyl bromide fumigation may only take place in an approved facility that adheres to stringent human health standards.

APHIS' statutory authority extends only to establishing regulations to mitigate the plant pest risk associated with the importation of plants and plant products into the United States. Accordingly, it is the responsibility of the Chinese government to establish and enforce human health standards regarding the safe use of methyl bromide.

Accordingly, based on our evaluation of the issue, we have decided to approve methyl bromide fumigation as a treatment for wooden handicrafts from China that are less than 6 inches in diameter, and have added this treatment to the Treatment Manual. However, because, as we mentioned above, we are currently examining the efficacy of other treatment options for Chinese wooden handicrafts, § 319.40-5(o)(1), as finalized, does not make explicit reference to any one treatment option for the handicrafts. Such a modification will allow us to use the approach established by the January 26, 2010, final rule to add any new treatment schedules that we determine to be efficacious for Chinese wooden handicrafts to the Treatment Manual through publishing notices in the Federal Register, rather than through rules.

In proposed § 319.40-5(o)(2), we stated that all consignments of wooden handicrafts would have to be accompanied by a phytosanitary certificate issued by the NPPO of China, and that the certificate would have to contain an additional declaration stating that the handicrafts were treated in accordance with § 319.40-5 and inspected and found free from quarantine pests.

Two commenters stated that the certificate would duplicate existing documentation required under the regulations, and therefore should not be required.

In response to these comments, we reexamined the proposed provision in light of existing regulations within the subpart. In § 319.40-2(a), we require a specific permit to be issued in accordance with § 319.40-4 prior to the importation of a regulated article, unless the article is imported for propagation or human consumption, or is authorized importation under a general permit. Section 319.40-4 sets forth the procedure for applying for a specific permit. As part of this procedure, we require that each application include a description of any treatment to be performed prior to importation, including the location where the treatment will be performed, as well as the name and address of the importer of record.

Similarly, in § 319.40-2(b), we require an importer document or certificate to accompany all regulated articles, unless the article is imported for propagation or human consumption, or is authorized importation under a general permit. This importer document or certificate must state the treatment performed on the article prior to arrival at the point of first arrival.

Wooden handicrafts from China are not imported for propagation or human consumption, and are not authorized importation under a general permit. Hence, each importation of wooden handicrafts from China must be authorized under a specific permit and accompanied by an importer document or certificate.

Finally, § 319.40-7 sets forth treatment requirements for regulated articles. Paragraph (a) of that section provides that, in response to inaccuracies on a document accompanying a regulated article, APHIS may determine not to accept any further certificates for the importation of regulated articles from that country, or may not allow the importation of any or all regulated articles from the country until corrective action acceptable to APHIS establishes that certificates issued in the country are accurate.

Collectively, these requirements provide APHIS with information regarding the treatment applied to wooden handicrafts from China, a responsible party in the event that any imported handicrafts are determined to be infested with quarantine pests, and sufficiently stringent remedial measures to deter parties from providing inaccurate information on documents associated with the importation. As a result, we do not consider a phytosanitary certificate necessary, and are not including that requirement in this final rule.

Three commenters stated that China has repeatedly authorized the export of contaminated or infested commodities in recent years. One of these commenters stated that Chinese officials are not concerned with the veracity of information on documents pertaining to the importation of these commodities. All the commenters stated that APHIS should not allow the NPPO of China to issue phytosanitary certificates, but should instead station personnel in China to monitor all treatments of wooden handicrafts and inspect all consignments destined for export to the United States.

As we stated above, we consider the regulations to provide sufficient remedial measures to deter parties from providing inaccurate information on any document pertaining to the importation of wooden handicrafts from China. Moreover, we note that, under § 319.40-9, all regulated articles must be inspected at the port of first arrival. If a regulated article shows any signs of pest infestation, the inspector may require treatment, if an approved treatment exists, or refuse entry of the consignment.

In proposed § 319.40-5(o)(3), we stated that all individual packages of wooden handicrafts would have be labeled with a merchandise tag containing the identity of the product manufacturer. We further stated that the tag would have to be applied to each package in China prior to exportation and remain attached to the package until it reaches the location at which the wooden handicraft would be sold in the United States.

Two commenters stated that they manufacture wooden handicrafts that are packaged in a manner that prevents an identification tag from being applied to the package. One of these commenters requested that APHIS provide guidance regarding how manufacturers could apply the tag to packaging in a manner that would not deter consumers from purchasing their product.

The tag must be applied to each shipping package containing wooden handicrafts, rather than to the packaging for any particular handicraft. For example, if a wooden train containing partially processed parts were sealed in a blister package in China, and a box containing several dozen of these trains were exported to the United States for sale at a toy store, the identification tag would have to be applied to the box that is shipped to the store, rather than to the individual blister packages. We have modified proposed § 319.40-5(o)(3) to clarify that it refers to shipping packages, rather than packaging.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

This final rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this rule. The economic analysis provides a cost-benefit analysis, as required by Executive Orders 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The economic analysis also examines the potential effects of this rule on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site (see footnote 1 at the beginning of this document for a link to Regulations.gov ).

This rule will allow for the resumption of imports of wooden handicrafts from China, provided certain conditions are met. In 2005, APHIS suspended the importation of certain wooden handicrafts until we could more fully analyze the pest risks associated with those articles. We have determined that the heat, heat with moisture reduction, and methyl bromide fumigation treatment options prescribed in this rule will sufficiently mitigate these pest risks.

Protection of U.S. forests against the introduction and spread of invasive pests is vital to the economic well-being of the forestry industries as well as to maintaining the forests' environmental and aesthetic benefits for the general public. The hundreds of millions of dollars that have been spent to control the spread of EAB and the Asian longhorned beetle exemplify the enormous cost to the United States when invasive pests become established. This rule will establish safeguards against further incursions of wood-boring pests such as these via the importation of infested handicrafts from China, while allowing the importation of such handicrafts to resume.

U.S. entities are expected to be minimally affected by this rule. Wooden handicrafts comprised a very small fraction of wood products imported from China prior to April 2005, and similar levels of importation are expected following promulgation of this rule. Nonetheless, U.S. consumers of wooden handicrafts will benefit from reestablished access to these products from China. Treatment costs, representing on average less than 2 percent of the value of the products shipped, will be borne by firms in China, and any fraction of those costs that may be passed on to U.S. buyers will be negligible. In addition, benefits are expected to exceed costs.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

An environmental assessment and finding of no significant impact have been prepared for this final rule. The environmental assessment provides a basis for the conclusion that the importation of wooden handicrafts from China under the conditions specified in the rule will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.

The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq. ), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

The environmental assessment and finding of no significant impact may be viewed on the Regulations.gov Web site. 6 Copies of the environmental assessment and finding of no significant impact are also available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT .

This final rule does not include an information collection requirement that had been included in the proposed rule. Specifically, for the reasons described earlier in this document, this final rule does not include a requirement for the completion of phytosanitary certificates.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget (OMB) under OMB control number 0579-0357.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

Accordingly, we are amending 7 CFR part 319 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the Federal Register on October 18, 2011 (76 FR 64291). That NPRM proposed to require a one-time inspection of the No. 3 bearing packing for an incorrect cooling hole size and, if it is found nonconforming, removing the packing and removing certain engine rotating LLPs, if they were operated with the wrong packing for a specified number of cycles.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and the FAA's response to each comment.

Commenters the Boeing Company and Federal Express support the NPRM as written.

Commenters GE and Delta Airlines (Delta) indicated that the part number noted in the Discussion section of the NPRM (76 FR 64291, October 18, 2011) was incorrect and should be “1471M25P04” rather than “1292M70P04” as listed in the NPRM.

We agree. However, the Applicability section of the final rule is correct. We did not change the AD.

Commenter Lufthansa Technik AG (Lufthansa) asked that we state more clearly the difference between the issues of packings shipped in a batch of nonconforming parts and nonconforming packings installed in engines in service.

We disagree. The AD sufficiently describes the difference between nonconforming packings shipped by the supplier and those in service. We did not change the AD.

Commenter Lufthansa suggested that the cost of compliance estimate in the NPRM covers only the cost of shipped nonconforming parts and does not include the cost of replacing nonconforming packings that are installed in engines in service. Lufthansa also noted that the installed parts are covered by a different service bulletin and are not covered by warranty.

We disagree. Our cost estimate covers the inspection and installed parts and is independent of any possible warranty coverage. We did not change the AD.

Commenter Lufthansa requested that we provide full instructions for compliance for engine models CF6-80C2L1F and CF6-80C2K1F. Lufthansa noted that neither the NPRM (76 FR 64291, October 18, 2011) nor GE SB CF6-80C2 S/B 72-1405 provide enough information for these engines to comply with the proposed rule. Lufthansa requested that we refer to Revision 01 of GE SB CF6-80C2 S/B 72-1405 rather than to the original version.

We agree. We changed the AD by updating the GE service bulletin references in the AD to GE SB CF6- 80C2 S/B 72-1405, Revision 01, dated December 16, 2011.

Commenter Atlas Air requested that we revise the cost estimate by including cost to replace LLPs.

We agree. We revised the cost of compliance section in the AD to include our estimate for the total fleet replacement cost of LLPs with unacceptable cooling flows.

Commenter Presidential Flights requested that we specify a date after which the batch of non-conforming No. 3 bearing packings with incorrect cooling holes was supplied, and that we limit applicability to engines that had a shop visit after this specified date. Commenter Japan Airlines requested that the AD not apply to engines with a last shop visit prior to November 30, 2009, if there have not been reports of non-conforming packings for these engines. Commenter Atlas Air commented that applicability should only apply to engines with packings from the affected batch of nonconforming parts shipped from a supplier.

We do not agree. The AD applies to all CF6-80C2 engines, regardless of the date of the last shop visit, the service location, or the engine serial number. The explanation for inspecting the entire fleet is provided in the Discussion section of the NPRM (76 FR 64291, October 18, 2011). We did not change the AD.

Commenter Atlas Air also asked that applicability be changed to specific affected engine serial numbers. Commenter TES Aviation Group requested clarification regarding whether the AD applied only to engines with certain serial numbers or maintained in certain service locations.

We disagree. The AD applies to all CF6-80C2 engines, regardless of engine serial number or last service location. We did not change the AD.

Commenter GE requested that the applicability be changed to apply to only those engines that have had a shop visit where the fan was removed from the engine core and GE SB CF6-80C2 S/B 72-1405 was not completed during or since that visit. GE indicated that no new production engines are affected by the nonconformance and engines that already complied with the GE SB CF6-80C2 S/B 72-1405 shop inspection have accomplished the requirements of the proposed rule.

We disagree. Excluding all engines that have not yet had a shop visit where the fan was removed from the core leaves an engine population in service that might be susceptible to installation of the nonconforming packing. We did not change the AD.

Commenter All Nippon Airways (ANA) asked that credit be given to engines inspected in accordance with GE SB CF6-80C2 S/B 72-1405 before the effective date of this AD.

We agree. We changed the AD to indicate that a previous inspection meets the one-time inspection requirements of this AD.

Commenter Lufthansa requested that we include CF6-45/50, CF6-80A, and CF6-80E1 engines, as applicable, to the AD.

We disagree. We have not received reports of nonconforming packing installed in any engine other than the CF6-80C2. We did not change the AD.

An unidentified commenter requested that we mandate compliance of spare parts.

We do not agree. This AD affects assembled engines in service on the effective date of the AD. Parts installed in an engine after the effective date of this AD must be airworthy per § 43.13 of Title 14 of the Code of Federal Regulations. Operators may choose to perform inspections in accordance with this AD before returning engines from shop into service, although these inspections are not required by this AD before specified compliance times. In order to avoid confusion, we added a prohibition statement, paragraph (i), which does not allow re-installation of the LLPs removed from service in accordance with this AD.

Commenter ANA requested that we clarify the terminating action to the AD.

We disagree. The AD mandates a one-time inspection and disposition. Terminating action does not apply. We did not change the AD.

Eight commenters requested that we approve a BSI to determine the No. 3 bearing packing configuration either on-wing or in the shop and to determine if further actions are necessary.

We partially agree. We agree that a BSI may be used to measure packing hole diameters to determine acceptable cooling flows. We disagree with using a BSI to determine the part number of the packing or the need for further actions as a BSI cannot be used to make such a determination on all affected engines.

We changed the AD to allow the one-time No. 3 bearing packing inspection to occur at the next shop visit if a successful optional BSI is performed within 500 cycles in service (CIS) from the effective date of the AD.

Commenters GE and Delta requested that we change the compliance time of the one-time inspection to be performed at the next shop visit in which the fan is separated from the HPC. GE indicated that it has not determined that removal from service prior to 5,500 CIS is required. GE regards 5,500 CIS as an economic threshold not a hard life removal threshold.

We disagree. We do not agree with unconditional deferral to the next shop visit as unacceptable cooling flow could affect the lives of the LLPs. We did not change the AD.

Commenter Atlas Air asked that the service information incorporated by reference be revised to address certain fan frame part numbers with small cooling holes. Atlas Air indicated that certain small fan frame hole diameters may affect cooling flows, even though the packing configuration is determined to provide acceptable flows.

We do not agree. The cooling flow assessment addressed the worst case configuration. Cooling flow acceptability should be determined from the packing hole diameter, not the fan frame hole diameter. We did not change the AD.

Six commenters requested that a drawdown schedule be provided for engines that have accumulated 5,500 or more CIS since the last engine shop visit when the fan was removed from the core. Some of these commenters reported that some of their engines were already past 5,500 CIS since the last engine shop visit in which the fan was removed from the core.

We agree. We changed the AD to require the inspection within 500 CIS of the effective date of this AD for those post-5,500-cycle engines.

Commenters Air Canada and TES Aviation Group requested that growth checks, hardness checks, or calculations be allowed to determine the disposition of LLPs affected by the unacceptable cooling flows instead of removing the parts from service if they were operated for 5,500 CIS or more with a No. 3 bearing packing determined to be “UNACCEPTABLE FLOW.”

We do not agree. We have no technical substantiation that supports pass/fail criteria for determining if LLPs have operated with an unacceptable flow packing configuration. We did not change the AD.

Commenter Presidential Flight requested that LLP determination be based on CIS since first shop visit after supply of the affected batch, not the last shop visit because, they noted, an engine may have had multiple shop visits since the affected batch of nonconforming packings was shipped. Commenters Air Canada, Atlas Air, and TES Aviation Group indicated that it is impossible to determine how many cycles the LLPs have operated with nonconforming packings, because the packings are not serialized or tracked. In addition, the commenters noted that, if an engine is inspected and found to have a conforming packing, there is no guarantee that a nonconforming packing had not been used on that engine between earlier shop visits. Also, the commenters observed that it is impossible to estimate the effect on life of the LLPs that had operated with a nonconforming packing and were later removed from the engine.

We do not agree. Installation dates when nonconforming packings might have been installed into engines in service are unknown. Similarly, engine operation with nonconforming packing cannot be determined other than via inspection of the currently installed packing. We did not change the AD.

Commenters GE, American Airlines, and Delta requested that we provide the requirement for LLP disposition in the case of the cooling flows determined not to be “CORRECT FLOW” in accordance with GE SB CF6-80C2 S/B 72-1405, dated June 30, 2011.

We agree. Unacceptable cooling flows are now addressed in Revision 01 of GE SB CF6-80C2 S/B 72-1405, dated December 16, 2011, and GE SB CF6-80C2 S/B 72-1427, dated December 16, 2011. Therein, cooling flows not affecting the LLPs in the rotors are described as “acceptable flow.” We revised the AD in paragraph (h) to remove from service those LLPs that had been operated for 5,500 CIS or more with unacceptable flow and added paragraph (g) to define criteria for acceptable flows determined during an optional borescope inspection.

Commenters GE and KLM Royal Dutch Airlines requested that the induction of an engine into a shop solely for a core vibration trim balance procedure that requires separation of a major engine flange not be considered an engine shop visit. Another commenter, Lufthansa, requested that the induction of an engine into a shop solely for the removal or replacement of the stage 1 fan disk or the fan forward case also not be considered an engine shop visit.

We partially agree. We agree that the induction of an engine into a shop solely for core vibration balance should not be considered an engine shop visit for the purposes of this AD, because it does not require separation of the fan from the core. We disagree that the induction of an engine into a shop solely for removal or replacement of the stage 1 fan disk or fan forward case should not be considered an engine shop visit for the purposes of this AD, because these procedures require maintenance to the fan module.

We changed the AD to define a shop visit as not including induction of an engine into a shop solely for core vibration trim balance procedures that require separation of a major engine flange.

Commenter Delta requested that we use the phrase “fan module removed from the core module” instead of “fan removed from the core.”

We do not agree. The current language is consistent with service documents that we incorporate by reference in this AD. We did not change the AD.

We provided incorrect contact information for GE in the NPRM (76 FR 64291, October 18, 2011). We have updated the contact information.

We reviewed all the data presented, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes:

• Are consistent with the intent that was proposed in the NPRM (76 FR 64291, October 18, 2011) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 64291, October 18, 2011).

We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD will affect 688 engines installed on airplanes of U.S. registry. We also estimate that it will take about 1 work-hour per engine to perform the borescope inspection, about 1 work-hour per engine to perform the shop inspection, and 1 work-hour to replace the No. 3 bearing packing, if found nonconforming. The average labor rate is $85 per work-hour. Required parts cost about $488 per engine for the estimated 21 engines that will require new No. 3 bearing packing. We estimate that one set of LLPs will need replacement, and the total replacement cost is $1,201,200. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $1,330,193. Our estimate is exclusive of any possible warranty coverage.

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:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the Federal Register on November 7, 2011 (76 FR 68660). That NPRM proposed to require replacing the FMU, P/N 50U150, at the next shop visit after the effective date of the proposed AD.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and the FAA's response to each comment.

Delta Airlines, Inc. requested that we specify replacing affected FMUs with FMU P/N 53U044, or later FAA-approved P/Ns. The commenter stated that doing this would help avoid potential alternative methods of compliance questions, and issues with specifying compliance to a service bulletin.

We do not agree. We only identify the affected parts requiring removal in the AD, and the modification that is required to correct the design. If we identified the replacement part by P/N, then, if and when that part gets replaced by another P/N, the AD would have to be superseded. We did not change the AD.

FedEx Express requested that we extend the compliance time from 60 months from the issue date of the proposed AD. The additional time is needed to plan forced removals of the installed FMUs and implement an effective modification planning program.

We do not agree. The compliance time specified in the AD is at the next shop visit. The commenter is referring to an outdated version of the service bulletin. We did not change the AD.

Martinair Holland and United Airlines, Inc. requested that we also reference Hamilton Sundstrand ASB No. JFC131-2-73-A24, Revision 1, dated May 18, 2011, in the AD compliance, as that SB contains information required to perform the FMU modification required by the AD.

We agree. We changed the AD to incorporate by reference (IBR) only that Hamilton Sundstrand ASB. That Hamilton Sundstrand ASB is also included within the Pratt & Whitney ASB No. PW4ENG A73-220, Revision 1, dated May 18, 2011, which we listed under Related Information.

Martinair Holland, United Airlines, Inc. and United Parcel Service Co. requested that we include Pratt & Whitney FMU P/Ns 53T335 and 55T423 with the existing P/N 50U150, in the AD, and also include the equivalent Hamilton Sundstrand FMU P/Ns 801000-3, 801000-1, and 801000-2.

We agree and added those P/Ns to the AD. The equivalent Hamilton Sundstrand P/Ns are included in parentheses.

United Airlines, Inc. requested that we change paragraph (f) from “install a modified FMU,” to “install a new or modified FMU.”

We agree. The intent of the AD is to install an FMU incorporating the improvements of the modification, whether a new or modified FMU. We changed paragraph (f) in the AD.

United Airlines, Inc. requested that we not IBR Pratt & Whitney ASB No. PW4ENG A73-220, Revision 1, dated May 18, 2011, but to instead simply reference the ASB in the AD. The commenter stated that this would allow them flexibility to perform the FMU modification using their normal maintenance program and shop procedures.

We partially agree. We agree to change the AD to not IBR Pratt & Whitney ASB No. PW4ENG A73-220, Revision 1, dated May 18, 2011. We do not agree with the AD having no procedure IBRed to support use of a normal maintenance program and shop procedures. We changed the AD to IBR the portion of the Hamilton Sundstrand ASB No. JFC131-2-73-A24, Revision 1, dated May 18, 2011, that contains the unique procedures required to modify the FMUs.

United Airlines, Inc. commented that a potential shortage of parts could affect compliance with the AD.

We do not agree. Hamilton Sundstrand has worked to build up the FMU inventory to support the expected demand, so meeting the compliance time in the AD should not be a problem.

United Parcel Service Co. requested that we withdraw the proposed AD. The commenter stated that since the overspeed incident occurred in 2006, there were several maintenance actions initiated by Pratt & Whitney and implemented by operators to minimize the risk of further incidents. The actions include reducing the overhaul soft time in the maintenance planning guide for main fuel pumps, including in the engine manual additional inspections of the FMU servo wash filter and transfer fuel tubes, and clarifying the trouble shooting instructions in the aircraft fault isolation manual to identify symptoms of clogged servo wash filters.

We do not agree. The unsafe condition exists in the design of the FMU, which must be addressed to prevent overspeed, potential uncontained engine failure, and damage to the airplane. The actions mentioned by the commenter were an interim plan to mitigate the risk of an unsafe condition. However, they do not represent the final corrective action. A servo wash filter clog followed by an overspeed event represents a single point failure in the engine design which can reasonably be expected to occur and which can result in a hazardous engine effect (uncontained engine failure). Because of this, the engine no longer meets the airworthiness standards to which it was certified. The intent of this AD action is to return the engine to the same level of safety provided by the airworthiness standards of its original certification. We did not withdraw the AD.

United Parcel Service Co. requested that we change the compliance time to the next component shop visit or at the next engine shop visit if the OEM recommended soft time is reached or exceeded. The commenter stated that operators with a low hour-to-cycle ratio would typically only overhaul the FMU at every other shop visit. The proposed AD compliance would require removal at the next shop visit, which could force removal of otherwise serviceable FMUs and add significant incremental labor and repair costs to operators.

We do not agree. Performing the FMU replacement or modification at the next component shop visit interval would not provide an acceptable level of safety. We did not change the AD.

United Parcel Service Co. requested that we adjust the cost of compliance to include incremental costs for FMUs that will be forced out of service before reaching the recommended overhaul soft time of 12,000 hours. The commenter states that the labor cost in the proposed AD assumes that the FMU is already in the shop and disassembled for normal FMU maintenance. It does not include labor hours that will be required for receiving inspection, disassembly, test, and preparation for shipment. The incremental cost of FMUs that are replaced before reaching its soft time are also not taken into account.

We do not agree. FMUs can be modified to comply with the AD. They do not need to be replaced with a new FMU. The cost of the AD includes the required labor to perform the modification as well as the parts cost for the upgrade kit. We consider only the actual cost of the AD; not other costs. We did not change the AD.

United Parcel Service Co. requested that we include in the AD the option to perform on-wing replacements of unmodified FMUs with new or modified FMUs. The commenter stated that the proposed AD only requires replacement at time of shop visit. Operators would then have to apply for an alternative method of compliance to replace an FMU on-wing.

We partially agree. We agree that the operator could comply with the AD before the engine reaches the shop if the operator chooses to replace the FMU on-wing. We do not agree that a change to the AD is required because the operator can take credit for actions already done. Paragraph (e) of the AD states that you must comply with the AD within the compliance times specified, unless already done. We did not change the AD.

United Parcel Service Co. requested that we change the installation prohibition paragraph (g) to prohibit installation of an unmodified FMU within the 3-year compliance period after a modified FMU has been installed. The commenter acknowledged that installation of an unmodified FMU is prohibited once a modified FMU is installed, but this is not explicitly stated in the proposed AD.

We do not agree. Once you comply with the AD by installing a modified FMU in accordance with the AD at the next engine shop visit after the effective date of the AD, or elect to comply with the AD by installing a modified FMU before the next engine shop visit after the effective date of this AD, the engine is in compliance with the AD and you cannot undo that compliance. We did not change the AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously.

We estimate that this AD affects 750 engines installed on airplanes of U.S. registry. We also estimate that it will take about 3.2 work-hours per product to comply with this AD. The average labor rate is $85 per work-hour. Required parts will cost about $10,698 per engine. Based on these figures, we estimate the cost of the AD to U.S. operators to be $8,227,500.

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:

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Emergency AD 2012-0019-E, dated January 26, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

BRP-Powertrain GmbH & Co KG has issued Mandatory ASBs No. ASB-912-060 and No. ASB-914-043 (combined in one document), dated January 26, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of Austria, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This AD requires performing a one-time inspection of the oil system for leaks and a torque check of the oil pump attachment bolts, and if leaks are detected, performing a one-time inspection of the oil pump and engine valve train, on certain S/N BRP-Powertrain GmbH & Co KG Rotax 912 S2, 912 S3, and 914 F2 reciprocating engines.

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 no domestic operators use these engines. Therefore, we determined that notice and opportunity for public comment before issuing this AD are unnecessary and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0126; Directorate Identifier 2012-NE-07-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 with FAA personnel concerning this AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

This rule amends Title 14 of the Code of Federal Regulations, part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the, associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979) ; and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

We encourage participation in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) to use the Docket Management Facility. Please see DOT's “Privacy Act” paragraph below.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0286), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov , it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov , click on the “submit a comment” box, which will then become highlighted in blue. Insert “USCG-2011-0286” in the “Search” box. Click “Search” then click on “Submit a Comment” in the “Actions” column.

If you submit comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change this rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov . Insert “USCG-2011-0286” in the Search box and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one to the Docket Management Facility at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

We are publishing this direct final rule under 33 CFR 1.05-55 because we do not expect an adverse comment. If no adverse comment or notice of intent to submit an adverse comment is received by April 2, 2012, this rule will become effective as stated in the DATES section. In that case, approximately 30 days before the effective date, we will publish a document in the Federal Register stating that no adverse comment was received and confirming that this rule will become effective as scheduled. However, if we receive an adverse comment or notice of intent to submit an adverse comment, we will publish a document in the Federal Register announcing the withdrawal of all or part of this direct final rule. If an adverse comment applies only to part of this rule (e.g., to an amendment, a paragraph, or a section) and it is possible to remove that part without defeating the purpose of this rule, we may adopt, as final, those parts of this rule on which no adverse comment was received. We will withdraw the part of this rule that was the subject of an adverse comment. If we decide to proceed with a rulemaking following receipt of an adverse comment, we will publish a separate notice of proposed rulemaking (NPRM) and provide a new opportunity for comment.

A comment is considered “adverse” if the comment explains why this rule or a part of this rule would be inappropriate, including a challenge to its underlying premise or approach, or would be ineffective or unacceptable without a change.

The Coast Guard is amending and updating the special local regulations and safety zones under 33 CFR parts 100 and 165 to incorporate the numerous annual marine events held on or around navigable waters within the Eighth Coast Guard District. These events include marine parades, boat races, swim events, fireworks displays, and other marine related events. In the past, a special local regulation or safety zone for each individual event was established separately. Currently, there is a list of events located at 33 CFR part 100, establishing a special local regulation for each annually recurring marine event. That list requires amending and updating to include 136 new events expected to recur annually (and for which temporary rules have typically been enacted each year), remove 44 events that no longer occur, and to properly categorize 83 events requiring either a special local regulation or a safety zone. Issuing individual regulations for each new event, event requiring amendment, or removing or re-categorizing an event creates unnecessary administrative costs and burdens. This rule considerably reduces the administrative overhead and provides the public with notice through publication in the Federal Register of the upcoming recurring marine events and their accompanying special local regulations and safety zones.

Amending and updating the established permanent regulations for marine events eliminates the need to issue individual temporary rules for each recurring event. The Coast Guard encourages the public to participate in this rulemaking so that any changes necessary can be identified and implemented in a timely and efficient manner.

33 CFR part 100 contains regulations to provide effective control over regattas and marine parades conducted on U.S. navigable waters to ensure safety of life in the regattas or marine parade area. Section 100.801 regulates events that take place in the Eighth Coast Guard District. This section requires amendment and update to properly reflect the annually recurring marine events requiring special local regulations in the Eighth Coast Guard District. The events listed in Table 1 of Section 100.801 are amended and updated to reflect current events as presented in this rule.

This rule also modifies 33 CFR part 165 which provides for the establishment of safety zones to ensure marine safety during fireworks displays, air shows and other marine events recurring annually and requiring a safety zone. A new table listing the annually recurring safety zones in the Eighth Coast Guard District is added to 33 CFR 165.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary. The marine parades, regattas, fireworks displays, and other events listed in this rule will restrict vessel traffic transiting certain areas of Eighth Coast Guard District waters at specified times; however the effect of this regulation will not be significant because these events are short in duration and the special local regulation or safety zone restricting and governing vessel movements are also short in duration. Additionally, the public is given advance notification through the Federal Register and/or Notices of Enforcement and thus will be able to plan operations around the events in advance.

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

This rule may affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit the regulated area during the marine parades, regattas, fireworks displays, and other events. The special local regulations and safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons. These regulations will be in effect for short periods of times. Before the effective period, the Coast Guard Captain of the Port will issue maritime advisories widely available to waterway users.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small businesses. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 0023.1 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2-1, paragraphs (34)(g) and (34)(h) of the Instruction because it involves establishment of safety zones and special local regulations for marine parades, regattas, fireworks displays, and other events. An Environmental analysis and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 100 and 165 as follows:

The North Carolina Department of Transportation, who owns and operates this vertical-lift type drawbridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.5, to facilitate the structural repair of the bridge.

Under the regular operating schedule for this temporary deviation period, the bridge opens on signal as required by 33 CFR 117.5.

The Cape Fear Memorial Bridge across the Cape Fear River mile 26.8, at Wilmington NC has vertical clearances in the full open and closed positions of 135 feet and 65 feet above mean high water, respectively.

Under this temporary deviation to facilitate the structural repairs and painting, the drawbridge will operate as follows: Need not open from 7 a.m. on March 1, 2012 until and including 11 p.m. on May 31, 2012; except, vessel openings will be provided if at least three hours advance notice is given to the bridge tender at (910) 251-5773 or via marine radio on channel 18 VHF.

Typical vessel traffic on the Cape Fear River includes a variety of vessels from freighters, tug and barge traffic, and recreational vessels. Vessels that can pass under the bridge without a bridge opening may continue to do so at anytime. The drawbridge is able to open for emergencies.

The Coast Guard has carefully coordinated the restrictions with commercial and recreational waterway users. The Coast Guard will inform all users of the waterway through our Local and Broadcast Notice to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its original 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 Maryland Transportation Authority, who owns and operates this double-leaf bascule drawbridge, has requested a temporary deviation from the current operating schedule set out in 33 CFR 117.557 which requires the bridge to open on signal if at least a one-hour advance notice is given to the Maryland Transit Authority in Baltimore.

The I-695 Bridge has a vertical clearance in the closed position of 58 feet, above mean high water.

Under this temporary deviation to facilitate the replacement of the grid deck, floor beams and stringers, the drawbridge will be closed for six (6) multi-day periods from 7 a.m. on February 10, 2012, through 7 a.m. May 17, 2012, as is more specifically set out below. During these closure periods no vessel openings will be provided. At all others times, vessel openings will be provided on signal if at least 24 hours advance notice is given.

This temporary deviation will not significantly disrupt vessel traffic because mariners can plan their trips to pass through the bridge between the closure periods when the bridge will be fully operational and vessels that can pass under the bridge without a bridge opening may do so at all times. There is no alternate route for vessels and the bridge will not be able to open in the event of an emergency during the stated closure periods.

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.

During this deviation, the bridge will operate as follows:

(1) From 6 a.m. on February 10 through 11:59 p.m. on July 17, 2012, will open on signal if at least 24 hours advance notice is given, except

(2) The bridge need not open during the following specified closure periods:

(i) From 7 a.m. on February 10, 2012 until 7 a.m. on February 15, 2012;

(ii) From 7 a.m. on February 18, 2012 until 7 a.m. on February 24, 2012;

(iii) From 7 a.m. on February 28, 2012 until 7 a.m. on March 10, 2012;

(iv) From 7 a.m. on April 12 until 7 a.m. on April 19, 2012;

(v) From 7 a.m. on April 28, 2012 until 7 a.m. on May 4, 2012; and

(vi) From 7 a.m. on May 7, 2012 until 7 a.m. on May 17, 2012.

Background

Under Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and the Secretary of Agriculture (Secretaries) jointly implement the Federal Subsistence Management Program (Program). This Program grants a preference for subsistence uses of fish and wildlife resources on Federal public lands and waters in Alaska. The Secretaries first published regulations to carry out this program in the Federal Register on May 29, 1992 (57 FR 22940). These regulations have subsequently been amended several times. This Program is a joint effort between Interior and Agriculture, as a result these regulations are located in two titles of the Code of Federal Regulations (CFR): Title 36, “Parks, Forests, and Public Property,” and Title 50, “Wildlife and Fisheries,” at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. The regulations contain subparts as follows: Subpart A, General Provisions; Subpart B, Program Structure; Subpart C, Board Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.

Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board comprises:

• A Chair, appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture;

• The Alaska Regional Director, U.S. Fish and Wildlife Service;

• The Alaska Regional Director, U.S. National Park Service;

• The Alaska State Director, U.S. Bureau of Land Management;

• The Alaska Regional Director, U.S. Bureau of Indian Affairs;

• The Alaska Regional Forester, U.S. Forest Service; and

• Two public members appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture.

Through the Board, these agencies and public members participate in the development of regulations for subparts C and D, which, among other things, set forth program eligibility and specific harvest seasons and limits.

In administering the program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Subsistence Regional Advisory Council (Council). The Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Council members represent varied geographical, cultural, and user interests within each region.

The Regional Advisory Councils have a substantial role in reviewing subsistence issues and making recommendations to the Board. The Federal Subsistence Board, through the Councils, will hold meetings to accept comments and propose changes to the subsistence take of fish and shellfish during the winter meeting cycle. You may present comments on this rule during those meetings at the following locations in Alaska, on the following remainingdates:

In accordance with § __.10(d)(4)(ii), one of the responsibilities given to the Federal Subsistence Board is to determine which communities or areas of the State are rural or nonrural.

The Board determines if a community or area is rural in accordance with established guidelines set forth in § __.15(a). The Board reviews rural determinations on a 10-year cycle and may review determinations out-of-cycle in special circumstances. Once the Board makes a determination that a community or area has changed from rural to nonrural, a waiting period of 5 years is required for the residents to comply with the change. A change from nonrural to rural would be effective 30 days after publication of the rule.

In 2007, the Board published a final rule, Subsistence Management Regulations for Public Lands in Alaska, Subpart C; Nonrural Determinations (72 FR 25688; May 7, 2007). This rule revised the list of nonrural areas identified by the Board. Only residents of areas identified as rural are eligible to participate in the Federal Subsistence Management Program on Federal public lands in Alaska. The Board changed Adak's status to rural, added Prudhoe Bay to the list of nonrural areas, and adjusted the boundaries of the following nonrural areas: the Kenai Area; the Wasilla/Palmer Area, including Point McKenzie; the Homer Area, including Fritz Creek East (except Voznesenka) and the North Fork Road area; and the Ketchikan Area, including Saxman and portions of Gravina Island. The effective date was June 6, 2007, with a 5-year compliance date of May 7, 2012.

On October 23, 2009, Secretary of the Interior Salazar announced the initiation of a Departmental review of the Federal Subsistence Management Program in Alaska; Secretary of Agriculture Vilsack later concurred with this course of action. The review focused on how the Program is meeting the purposes and subsistence provisions of Title VIII of ANILCA, and how the Program is serving rural subsistence users as envisioned when it began in the early 1990s.

On August 31, 2010, the Secretaries announced the findings of the review, which included several proposed administrative and regulatory changes to strengthen the Program and make it more responsive to those who rely on it for their subsistence uses. One proposal called for a review, with Council input, of the rural and nonrural determination process and, if needed, recommendations for regulatory changes.

The public, Alaska Native organizations, the State, and other groups have had numerous opportunities to comment and consult on rural determinations. The numerous comments received are the foundation of this action, and this rule is in response to the myriad of comments received.

Starting in November of 2009, the Secretarial review was conducted by the Alaska Affairs Office within the Office of the Secretary. Meetings with more than 45 different stakeholder groups were held in 13 different communities throughout Alaska. More than 115 comments from individuals and interested organizations were received. Many of these comments addressed concerns relating to rural and nonrural determinations. These comments were posted on the Departmental Web site at http://www.doi.gov/whatwedo/subsistencereview/index.cfm.

During the January 18-20, 2011, and January 17-20, 2012, Federal Subsistence Board public meetings, the Board offered a comment period each day for members of the public to speak to any issues related to subsistence issues that were not on the meeting agenda. Several members of the public took the opportunity to voice their concerns and comments on rural and nonrural issues. On January 21, 2011, and January 17, 2012, the Board conducted tribal consultations with Alaska Native organizations to address proposed regulatory changes to the subsistence take of fish and wildlife regulations; a number of Alaska Native organizations again took the opportunity to also express their views on rural and nonrural issues and how they affected their Tribes and communities. In addition, during Board work sessions held on May 3-4 and July 11, 2011, the Board provided opportunities for members of the public, Tribal representatives, and Council Chairs to comment on rural and nonrural issues. The transcripts for these Board meetings are posted at http://alaska.fws.gov/asm/board.cfml.

On January 20, 2012, the Board met to consider the Secretarial directive, consider the Council's recommendations and review all public, Tribal, and Native Corporation comments on rural determinations. After discussion and careful review, the Board voted unanimously to initiate a review of the rural determination process and the 2010 decennial review through publication of a proposed rule. Consequently, based on that action, the Board found that it was in the public's best interest to extend the compliance date of its 2007 final rule (72 FR 25688; May 7, 2007) on rural and nonrural determinations until the review of the rural determination process and decennial review are complete or in 5 years, whichever comes first.

The Board's justification for extending the compliance date is based on the following factors:

• With the overall review of the rural determination process and initiation of the decennial review, there exists the possibility that new rulemaking will be required. By extending the compliance date, the Board will be saving time and resources by avoiding the possibility of repetitive rulemaking; in addition, it will prevent confusion and undue hardship on affected rural users.

• This action would demonstrate a genuine commitment to listening and responding to what the Board heard through public comments, Tribal consultations, and Council recommendations.

• A recently published final rule (76 FR 56109, September 12, 2011) to expand the Board by two public members that represent rural Alaskan subsistence users; this action will give the Board additional perspective on the issues facing rural users.

The Board is publishing this rule without a prior proposal because this action is viewed as an administrative action. You may submit comment and materials on this rule by one of the methods listed in ADDRESSES . We will not accept comments sent by email or fax or to an address not listed in ADDRESSES . We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in DATES .

We will post your entire comment on http://www.regulations.gov. Before including personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

As expressed in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” the Federal officials that have been delegated authority by the Secretaries are committed to honoring the unique government-to-government political relationship that exists between the Federal Government and Federally Recognized Indian Tribes (Tribes) as listed in 75 FR 60810 (October 1, 2010) and the relationship required by statute for consultation and coordination with Alaska Native corporations. Consultation with Alaska Native corporations is based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.”

Title VIII of ANILCA provides rights to all Federally qualified rural residents for the subsistence taking of wildlife, fish, and shellfish. However, because tribal members are affected by subsistence regulations, the Secretaries, through the Board, provides Federally recognized Tribes and Alaska Native corporations opportunities to consult on subsistence issues.

The Board engages in outreach efforts for the program to ensure that Tribes and Alaska Native corporations are advised of the mechanisms by which they can participate. The Board provides a variety of opportunities for consultation: commenting on proposed changes to the existing rule; engaging in dialogue at the Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process. The Board is committed to efficiently and adequately providing opportunities to Tribes and Alaska Native corporations for consultation with regard to subsistence rulemaking.

A Draft Environmental Impact Statement (DEIS) for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. That document described the major issues associated with Federal subsistence management as identified through public meetings, written comments, and staff analyses and examined the environmental consequences of four alternatives. Proposed regulations (subparts A, B, and C) that would implement the preferred alternative were included in the DEIS as an appendix. The DEIS and the proposed administrative regulations presented a framework for a regulatory cycle regarding subsistence hunting and fishing regulations (subpart D). The Final Environmental Impact Statement (FEIS) was published on February 28, 1992.

Based on the public comments received, the analysis contained in the FEIS, and the recommendations of the Federal Subsistence Board and the Department of the Interior's Subsistence Policy Group, the Secretary of the Interior, with the concurrence of the Secretary of Agriculture, through the U.S. Department of Agriculture-Forest Service, implemented Alternative IV as identified in the DEIS and FEIS (Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS and the selected alternative in the FEIS defined the administrative framework of a regulatory cycle for subsistence hunting and fishing regulations. The final rule for subsistence management regulations for public lands in Alaska, subparts A, B, and C, implemented the Federal Subsistence Management Program and included a framework for a regulatory cycle for the subsistence taking of wildlife and fish. The following Federal Register documents pertain to this rulemaking:

An environmental assessment was prepared in 1997 on the expansion of Federal jurisdiction over fisheries and is available from the office listed under FOR FURTHER INFORMATION CONTACT . The Secretaries determined that the expansion of Federal jurisdiction did not constitute a major Federal action significantly affecting the human environment and, therefore, signed a Finding of No Significant Impact.

An ANILCA section 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program. The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. The final section 810 analysis determination appeared in the April 6, 1992, ROD and concluded that the Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.

During the subsequent environmental assessment process for extending fisheries jurisdiction, an evaluation of the effects of this rule was conducted in accordance with section 810. That evaluation also supported the Secretaries' determination that the rule will not reach the “may significantly restrict” threshold that would require notice and hearings under ANILCA section 810(a).

An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. This rule does not contain any new collections of information that require OMB approval. OMB has reviewed and approved the following collections of information associated with the subsistence regulations at 36 CFR part 242 and 50 CFR part 100: Subsistence hunting and fishing applications, permits, and reports, Federal Subsistence Regional Advisory Council Membership Application/Nomination and Interview Forms (OMB Control No. 1018-0075 expires January 31, 2013).

The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under Executive Order 12866. OMB bases its determination upon the following four criteria:

a. Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

b. Whether the rule will create inconsistencies with other agencies' actions.

c. Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

d. Whether the rule raises novel legal or policy issues.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. In general, the resources to be harvested under this rule are already being harvested and consumed by the local harvester and do not result in an additional dollar benefit to the economy. Therefore, the Departments certify that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.), this rule is not a major rule. It does not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of this Program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.

The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies and there is no cost imposed on any State or local entities or tribal governments.

The Secretaries have determined that these regulations meet the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.

Title VIII of ANILCA provides rights to all Federally qualified rural residents for the subsistence taking of wildlife, fish, and shellfish. However, the Board provides Federally recognized Tribes and Alaska Native Corporations an opportunity to consult on all subsistence issues. Consultation with Alaska Native Corporations is based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native Corporations on the same basis as Indian tribes under Executive Order No. 13175.”

The Secretaries, through the Board, provide a variety of opportunities for tribal consultation: Commenting on proposed changes to an existing rule; engaging in dialogue at the Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process.

This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.

Theo Matuskowitz drafted these regulations under the guidance of Peter J. Probasco of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by:

• Daniel Sharp, Alaska State Office, Bureau of Land Management;

• Sandy Rabinowitch and Nancy Swanton, Alaska Regional Office, National Park Service;

• Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs;

• Jerry Berg, Alaska Regional Office, U.S. Fish and Wildlife Service; and

• Steve Kessler, Alaska Regional Office, U.S. Forest Service.

For the reasons set forth in the preamble, the Federal Subsistence Board, under the authority at 16 U.S.C. 3, 472, 551, 668dd, 3101-3126; 18 U.S.C. 3551-3586; and 43 U.S.C. 1733, announces that the compliance date for the nonrural determinations for Prudhoe Bay, and the adjusted boundaries of the nonrural areas of: the Kenai Area; the Wasilla/Palmer Area, including Point McKenzie; the Homer Area, including Fritz Creek East (except Voznesenka) and the North Fork Road area; and the Ketchikan Area, including Saxman and portions of Gravina Island contained in 36 CFR 242.23 and 50 CFR 100.23 as revised on May 7, 2007 (72 FR 25688) is delayed until either the review of the rural determination process and the rural determination findings are completed or 5 years, whichever comes first. A document announcing the compliance date will be published in the Federal Register at a later date.

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

The November 24, 2010 submittal incorporates the current primary and secondary NAAQS for Pb, which were published in the Federal Register on November 12, 2008 (73 FR 66964) and codified at 40 CFR 50.16, “National primary and secondary ambient air quality standards for lead.” At the State level, these provisions became effective on October 24, 2010.

IDEM submitted the revisions to EPA for incorporation into the Indiana SIP to ensure consistency between the State and Federal definitions of the Pb NAAQS, as well as in the determination of attainment of those NAAQS.

A public hearing for the Pb NAAQS revision was held on June 2, 2010. No comments were received at this hearing.

On November 12, 2008, revisions to the Pb NAAQS were published in the Federal Register (73 FR 66964) and codified at 40 CFR 50.16. The primary (health-based) Pb NAAQS was strengthened to 0.15 micrograms per cubic meter (μg/m 3 ), measured as a rolling 3-month average and evaluated over a 3-year period. The secondary (welfare-based) Pb NAAQS was revised to be identical to the primary Pb NAAQS.

Under 40 CFR 50.16(a), ambient Pb concentrations are to be measured by either: (1) A reference method based on appendix G to 40 CFR part 50 (“Reference Method for the Determination of Lead in Suspended Particulate Matter Collected From Ambient Air”) and designated in accordance with 40 CFR part 53 (“Ambient Air Monitoring Reference and Equivalent Methods”); or (2) an equivalent method designated in accordance with 40 CFR part 53. In addition, under 40 CFR 50.16(b), determinations as to whether the Pb standards have been met are to be made in accordance with the data handling conventions and computations in 40 CFR part 50, appendix R, “Interpretation of the National Ambient Air Quality Standards for Lead.”

In IDEM's November 24, 2010 submittal, the State requested that 326 Indiana Administrative Code (IAC) 1-3-4 (b)(6) be revised to reflect EPA's revised primary and secondary Pb NAAQS. IDEM's requested revisions are nearly identical to the provisions contained in 40 CFR 50.16. Specifically, the definition of the NAAQS, the calculations for determining attainment of the NAAQS, and the mechanism to measure ambient concentrations of Pb are consistent with 40 CFR 50.16.

IDEM's rule contains the primary and secondary NAAQS of 0.15 μg/m 3 , which are achieved when the maximum arithmetic 3-month mean concentration for a 3-year period is equal to, or less than, 0.15 μg/m 3 , as determined by appendix R to 40 CFR part 50. Indiana has incorporated appendix R by reference into the SIP.

IDEM's submittal also incorporates by reference appendix G to 40 CFR part 50, which contains the data handling conventions and computations for determining with the Pb NAAQS have been met. It should be noted, however, that a determination of what constitutes a “Federal Equivalent Method” under 40 CFR 50.16(a)(2) can only be made by the Administrator of EPA.

Aligning State and Federal ambient air quality standards, calculations for compliance, and ambient concentration collection methods ensures consistency between EPA's and IDEM's Pb NAAQS; therefore, EPA concludes that IDEM's requested revision is approvable.

EPA is approving a submittal from IDEM that incorporates the Federally promulgated NAAQS for Pb codified at 40 CFR 50.16. Aligning State and Federal ambient air quality standards ensures consistency between EPA's and IDEM's Pb NAAQS.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the Proposed Rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective April 30, 2012 without further notice unless we receive relevant adverse written comments by April 2, 2012. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period; therefore, any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective April 30, 2012.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 CAA. 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).

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

On January 11, 2012, in response to EPA's GHG Tailoring Rule  1 and earlier GHG-related EPA rules, 2 TDEC submitted a final revision to EPA for approval into the Tennessee SIP to establish appropriate emission thresholds for determining which new or modified stationary sources become subject to Tennessee's PSD permitting requirements for GHG emissions. 3 Specifically, Tennessee's January 11, 2012, SIP revision included changes to TDEC's Air Quality Regulations, Chapter 1200-03-09-.01(4)— Construction and Operating Permits, Prevention of Significant Deterioration, which became state-effective February 8, 2011. The changes to Chapter 1200-03-09-.01(4) addressed the thresholds for GHG permitting applicability. In a rulemaking separate from today's rulemaking, EPA took final action to approve TDEC's air quality regulations impacting the regulation of GHG under Tennessee's PSD program. Detailed background information and EPA's rationale for the proposed approval of Tennessee's GHG regulations under the State's PSD program are provided in EPA's November 5, 2010, Federal Register notice. See 75 FR 68265.

Also on January 11, 2012, TDEC submitted a SIP revision (the subject of today's rulemaking) to include changes to TDEC's air quality regulations at Chapter 1200-03-09-.01(4)(b)46(i) to add automatic rescission provisions related to EPA's GHG permitting requirements (state effective November 27, 2011). EPA's analysis of the approvability of Tennessee's automatic rescission provisions is provided in section II of this rulemaking.

Tennessee's January 11, 2012, SIP submittal adds automatic rescission provisions to the State's PSD regulations at Chapter 1200-03-09. The automatic rescission provisions at Chapter 1200-03-09-.01(4)(b)46(i) provide that in the event that the D.C. Circuit or the U.S. Supreme Court issues an order which would render GHG emissions not subject to regulation under the Clean Air Act's PSD permitting program, then GHGs shall not be subject to regulation under Tennessee's PSD regulations as of the effective date of the Federal Register notice of vacatur. Further, the provisions provide that in the event that there is a change to federal law that supersedes regulation of GHGs under the Clean Air Act's PSD permitting program, then GHGs shall not be subject to regulation under Tennessee's PSD regulations as of the effective date of the change in Federal law.

EPA has determined that Tennessee's automatic rescission provisions are approvable. In assessing the approvability of these provisions, EPA considered two key factors: (1) Whether the public will be given reasonable notice of any change to the SIP that occurs as a result of the automatic rescission provisions, and (2) whether any future change to the SIP that occurs as a result of the automatic rescission provisions would be consistent with EPA's interpretation of the effect of the triggering action on Federal GHG permitting requirements. These criteria are derived from the SIP revision procedures set forth in the CAA and Federal regulations.

Regarding public notice, CAA section 110(l) provides that any revision to a SIP submitted by a State to EPA for approval “shall be adopted by such State after reasonable notice and public hearing.” In accordance with CAA section 110(l), TDEC followed applicable notice-and-comment procedures prior to adopting the automatic rescission provisions. Thus, the public is on notice that the automatic rescission provisions approved into Tennessee's SIP by today's action will enable the SIP to update automatically to reflect any order by the D.C. Circuit or the U.S. Supreme Court or any change in federal law that renders GHGs not subject to regulation under the Clean Air Act's PSD permitting program. In addition, the automatic rescission provisions provide that no change to the SIP as a result of an order by the D.C. Circuit or the U.S. Supreme Court will occur until EPA publishes a Federal Register notice of vacatur. Likewise, a change to federal law that supersedes regulation of GHGs under the federal PSD program would not affect Tennessee's SIP until the effective date of the federal law change. Thus, the timing and extent of any future SIP change resulting from Tennessee's automatic rescission provisions will be clear to both the regulated community and the general public.

EPA's consideration of whether any SIP change resulting from Tennessee's automatic rescission provisions would be consistent with EPA's interpretation of the effect of the triggering action on federal GHG permitting requirements is based on 40 CFR 51.105. Under 40 CFR 51.105, “[r]evisions of a plan, or any portion thereof, will not be considered part of an applicable plan until such revisions have been approved by the Administrator in accordance with this part.” 40 CFR 51.105. To be consistent with 40 CFR 51.105, any automatic SIP change resulting from a court order or federal law change must be consistent with EPA's interpretation of the effect of such order or Federal law change on GHG permitting requirements. EPA concludes that Tennessee's rescission provisions include sufficient safeguards to ensure that any resulting SIP change will be consistent with EPA's interpretation of the effect of the triggering action on federal GHG permitting requirements. Specifically, any automatic SIP change resulting from a court order pursuant to Chapter 1200-03-09-.01(4)(b)46(i)(I) would occur only after EPA's publication of a Federal Register notice of vacatur. Likewise, with respect to the revocation of GHG permitting requirements pursuant to Chapter 1200-03-09-.01(4)(b)46(i)(II) following “a change to Federal law that supersedes regulation of GHGs” under the CAA, EPA reads this provision to mean that Tennessee will wait for and follow EPA's interpretation as to the impact of any federal law change on Federal GHG permitting requirements before changing its own application of Tennessee's SIP. In the event of a court decision or Federal law change that triggers (or likely triggers) application of Tennessee's automatic rescission provisions, EPA intends to promptly describe the impact of the court decision or Federal law change on the enforceability of its GHG permitting regulations.

EPA is taking direct final action to approve Tennessee's January 11, 2012, SIP revision to amend Tennessee's SIP-approved regulations to adopt automatic rescission provisions at Chapter 1200-03-09-.01(4)(b)46(i). Specifically, the provisions establish that GHGs would not be subject to regulation under TDEC's PSD program in the event that an order by the D.C. Circuit or the U.S. Supreme Court or a change in Federal law renders GHGs not subject to regulation under the CAA's PSD permitting program. EPA has made the determination that Tennessee's January 11, 2012, SIP revision is approvable because it is not contrary to section 110 and part C of the CAA or EPA regulations regarding PSD permitting for GHGs.

EPA is publishing this rule without prior proposal because the Agency views this as a non-controversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comment be filed. This rule will be effective on April 30, 2012 without further notice unless the Agency receives adverse comment by April 2, 2012.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. If no such comments are received, the public is advised this rule will be effective on April 30, 2012 and no further action will be taken on the proposed rule.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 CAA; and

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

I. Background II. Analysis of State's Submittal III. Final Action IV. Statutory and Executive Order Reviews I. Background

On July 18, 1997 (62 FR 36852), EPA established an annual PM 2.5 NAAQS at 15.0 micrograms per cubic meter (μg/m 3 ) based on a 3-year average of annual mean PM 2.5 concentrations. On January 5, 2005 (70 FR 944), EPA published its air quality designations and classifications for the 1997 annual PM 2.5 NAAQS based upon air quality monitoring data for calendar years 2001-2003. These designations became effective on April 5, 2005. The Atlanta Area (which is comprised of Barrow, Bartow, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Hall, Henry, Newton, Paulding, Rockdale, Spalding and Walton Counties in their entireties and portions of Heard and Putnam Counties) was designated nonattainment for the 1997 annual PM 2.5 NAAQS. See title 40 CFR 81.311.

Designation of an area as nonattainment starts the process for a state to develop and submit to EPA a SIP under title 1, part D of the CAA. This SIP must include, among other elements, a demonstration of how the NAAQS will be attained in the nonattainment area as expeditiously as practicable but no later than the date required by the CAA. Under CAA section 172(b), a state has up to three years after an area's designation as nonattainment to submit its SIP to EPA. For the 1997 PM 2.5 NAAQS, these SIPs were due April 5, 2008. See 40 CFR 51.1002(a).

On July 6, 2010, Georgia submitted an attainment demonstration and associated reasonably available control measures (RACM), a reasonable further progress (RFP) plan, contingency measures, a 2002 base year emissions inventory and other planning SIP revisions related to attainment of the 1997 annual PM 2.5 NAAQS in the Atlanta Area. Subsequently, on December 8, 2011 (76 FR 76620), EPA determined that the Atlanta Area attained the 1997 annual average PM 2.5 NAAQS. The determination of attainment was based upon complete, quality-assured and certified ambient air monitoring data for the 2007-2009 period, showing that the Area had monitored attainment of the 1997 annual PM 2.5 NAAQS. The requirements for the Area to submit an attainment demonstration and associated RACM, RFP plan, contingency measures, and other planning SIP revisions related to attainment of the standard were suspended as a result of the determination of attainment, so long as the Area continues to attain the 1997 annual PM 2.5 NAAQS. See 40 CFR 51.1004(c).

On December 29, 2011, Georgia withdrew the Atlanta Area's attainment demonstration (except the emissions inventory) as allowed by 40 CFR 51.1004(c); however, such withdrawal does not suspend the emissions inventory requirement found in CAA section 172(c)(3). Section 172(c)(3) of the CAA requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. EPA is now approving the emissions inventory portion of the SIP revision submitted by the State of Georgia on July 6, 2010, as required by section 172(c)(3).

As discussed above, section 172(c)(3) of the CAA requires areas to submit a comprehensive, accurate and current inventory of actual emissions from all sources of the relevant pollutant or pollutants in such area. Georgia selected 2002 as base year for the emissions inventory per 40 CFR 51.1008(b). Emissions contained in the Atlanta attainment plan cover the general source categories of point sources, non-road mobile sources, area sources, on-road mobile sources, and biogenic sources. A detailed discussion of the emissions inventory development can be found in Appendix H of the Georgia submittal; a summary is provided below.

The tables below provide a summary of the annual 2002 emissions of nitrogen oxides (NO X ), sulfur dioxide (SO 2 ) and PM 2.5 .

The 172(c)(3) emissions inventory is developed by the incorporation of data from multiple sources and data. States were required to develop and submit to EPA a triennial emissions inventory according to the Consolidated Emissions Reporting Rule for all source categories (i.e., point, area, nonroad mobile and on-road mobile). This inventory often forms the basis of data that are updated with more recent information and data that also is used in their attainment demonstration modeling inventory. Such was the case in the development of the 2002 emissions inventory that was submitted in the state's attainment SIP for this Area. The 2002 emissions inventory was based on data developed with the Visibility Improvement State and Tribal Association of the Southeast (VISTAS) contractors and submitted by the States to the 2002 National Emissions Inventory. Several iterations of the 2002 inventories were developed for the different emissions source categories resulting from revisions and updates to the data. This resulted in the use of version G2 of the updated data to represent the point sources' emissions. Data from many databases, studies and models (e.g., Vehicle Miles Traveled, fuel programs, the NONROAD 2002 model data for commercial marine vessels, locomotives and Clean Air Market Division, etc.) resulted in the inventory submitted in this SIP. The data were developed according to current EPA emissions inventory guidance “Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations” (August 2005) and a quality assurance project plan that was developed through VISTAS and approved by EPA. EPA agrees that the process used to develop this inventory was adequate to meet the requirements of CAA Sec. 172(c)(3) and the implementing regulations.

EPA has reviewed Georgia's emissions inventory and finds that it is adequate for the purposes of meeting section 172(c)(3) emissions inventory requirement. The emissions inventory is approvable because the emissions were developed consistent with the CAA, implementing regulations and EPA guidance for emission inventories.

EPA is approving the 2002 base year emissions inventory portion of the SIP revision submitted by the State of Georgia on July 6, 2010. This action is being taken pursuant to section 110 of the CAA. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective April 30, 2012 without further notice unless the Agency receives adverse comments by April 2, 2012.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on April 30, 2012 and no further action will be taken on the proposed rule.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 CAA; and

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 30, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2)).

40 CFR part 52 is amended as follows:

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

Table 1 lists the negative declarations we are approving with the dates that they were adopted by the AVAQMD and SJVUAPCD and submitted by the California Air Resources Board (CARB).

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

On December 6, 2011 (76 FR 76115), EPA proposed a limited approval and limited disapproval of the following rule that was submitted for incorporation into the California SIP.

We proposed a limited approval because we determined that this rule improves the SIP and is largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because the following rule provision conflicts with section 110 and part D of the Act which prevents full approval of the SIP revision. Section G.1.g allows for alternate testing without including sufficient QA/QC requirements to demonstrate compliance. This undermines enforceability of the rule which contradicts CAA requirements for enforceability.

Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittal.

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

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the submitted rule. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rule. Neither sanctions nor a Federal Implementation Plan (FIP) will be imposed due to this limited disapproval. The limited disapproval also does not prevent any portion of the rule from being incorporated by reference into the federally enforceable SIP as discussed in a July 9, 1992 EPA memo found at: http://www.epa.gov/nsr/ttnnsr01/gen/pdf/memo-s.pdf.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals and limited approvals/limited disapprovals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because this limited approval/limited disapproval action does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the limited approval/limited disapproval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it approves a State rule implementing a Federal standard.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA lacks the discretionary authority to address environmental justice in this rulemaking.

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 rule 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). This rule will be effective on April 2, 2012.

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 April 30, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

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

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

On August 25, 2010, EPA determined that the two submittals met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.

We approved an earlier version of AVAQMD Rule 109 into the SIP on September 2, 2008 (73 FR 51226). The AVAQMD amended the SIP-approved version on April 20, 2010. We approved an earlier version of MDAQMD Rule 1117 into the SIP on April 30, 1996 (61 FR 18962). The MDAQMD amended the SIP-approved version on September 28, 2009. CARB submitted both rules to us on July 20, 2010. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC emissions. AVAQMD Rule 109 prescribes recordkeeping for several rules that limit emissions of VOC from various solvents, coating, adhesive, graphic arts and polyester resin operations and MDAQMD Rule 1117 limits emissions of VOC from graphic art and paper, film, foil and fabric coatings. EPA's technical support documents (TSDs) have more information about these rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source in nonattainment areas (see sections 182(a)(2) and (b)(2)), and must not relax existing requirements (see sections 110(l) and 193). AVAQMD and MDAQMD regulate ozone moderate nonattainment areas (see 40 CFR part 81). AVAQMD Rule 109 does not, in itself, control VOC emissions and therefore is not subject to RACT requirements. However, MDAQMD Rule 1117 must fulfill RACT.

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

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT and SIP relaxations. The TSDs have more information on our evaluation.

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

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by April 2, 2012, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on April 30, 2012. This will incorporate these rules into the federally enforceable SIP.

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

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

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

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

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

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

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

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

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

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

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

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

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 rules, 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).

Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

The information in this section is organized as follows:

A delisting petition is a request from a generator to exclude waste from the list of hazardous wastes under RCRA regulations. In a delisting petition, the petitioner must show that waste generated at a particular facility does not meet any of the criteria for which the EPA listed the waste as set forth in 40 CFR 261.11 and the background document for the waste. In addition, a petitioner must demonstrate that the waste does not exhibit any of the hazardous waste characteristics of ignitability, reactivity, corrosivity, or toxicity and must present sufficient information for the EPA to decide whether any factors, in addition to those for which the waste was listed, warrant retaining it as a hazardous waste. ( See 40 CFR 260.22; 42 U.S.C. 6921(f).)

If a delisting petition is granted, the generator remains obligated under RCRA to confirm that future generated waste remains nonhazardous based on hazardous waste characteristics and to ensure that future generated wastes meet the conditions set forth in this final rule.

Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may petition the EPA to remove their waste from hazardous waste control by excluding them from the lists of hazardous wastes contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260 through 266, 268 and 273 of 40 CFR. 40 CFR 260.22 provides a generator the opportunity to petition the Administrator to exclude a waste from the lists of hazardous wastes on a “generator-specific” basis.

On December 3, 2010, ConocoPhillips petitioned the EPA to exclude a maximum annual volume of 200 cubic yards of F037 residual solids from processing (for oil recovery) sludge removed from two storm water tanks at the Billings, Montana refinery, from the lists of hazardous waste contained in 40 CFR 261.31, because it believed that the petitioned wastes did not meet any of the criteria for which the waste was listed and there were no additional constituents or factors that would cause the waste to be hazardous. ConocoPhillips generates the waste through periodically removing and processing sludge accumulated in two storm water tanks through oil recovery and dewatering. The sludge is not accumulated at a constant rate and is currently removed from the tanks at approximately 18 month intervals and processed via centrifuge and/or filter press for oil recovery and dewatering. Recovered oil is reinserted into the refining process and water from dewatering is routed to the Refinery's on-site wastewater treatment plant.

ConocoPhillips submitted detailed descriptions of the process generating the waste and other information regarding the makeup of materials contributing to the sludge. ConocoPhillips asserted that the waste does not meet the criteria for the F037 waste code listing and that there are no other factors that might cause the waste to be hazardous.

To support its assertion that the waste is not hazardous, ConocoPhillips collected samples of the waste for analysis. Sample collection and chemical analysis were conducted in accordance with a pre-approved sampling and analysis plan. Details of the sampling and analysis plan and the analytical results are contained in the docket for the December 8, 2011 proposed rule.

Today the EPA is finalizing an exclusion for up to 200 cubic yards of residual solids, generated annually, from processing (for oil recovery) sludge removed from two storm water tanks at the ConocoPhillips Billings, Montana Refinery from the lists of hazardous waste contained in 40 CFR 261.31. Review of this petition included consideration of the original listing criteria, as well as the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See § 222 of HSWA, 42 U.S.C. 6921(f), and 40 CFR 260.22(d)(2)-(4).

On December 8, 2011, the EPA proposed to exclude or delist the storm water tank process residual generated at the ConocoPhillips Billings, Montana Refinery from the list of hazardous wastes in 40 CFR 261.31 and accepted public comment on the proposed rule (76 FR 76677). No public comments were received, and for reasons stated in both the proposed rule and this document, we believe that the storm water tank process residual from the ConocoPhillips Billings, Montana Refinery should be excluded from hazardous waste control.

This exclusion applies only to a maximum annual generation of 200 cubic yards of process residual from treatment of sludge in two storm water tanks at the ConocoPhillips Billings, Montana Refinery. This exclusion is effective only if the storm water sludge is processed in accordance with this rule, and the accompanying petition, and if all conditions contained in this rule are satisfied. ConocoPhillips must dispose of this waste in a Subtitle D landfill permitted, licensed or regulated by the State of Montana, or other state subject to Federal RCRA delisting, to accept the delisted processed storm water tank sludge. ConocoPhillips must verify prior to disposal that the constituent concentrations in the residual solids do not exceed the allowable levels set forth in this exclusion.

This rule is effective March 1, 2012. The Hazardous and Solid Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. This rule reduces rather than increases the existing requirements and, therefore, is effective immediately upon publication under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

Because the EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude states who have received authorization from the EPA to make their own delisting decisions.

The EPA allows states to impose their own non-RCRA regulatory requirements that are more stringent than the EPA's, under RCRA 3009, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a federally-issued exclusion from taking effect in the state. Because a dual system (that is, both Federal (RCRA) and state (non-RCRA) programs) may regulate a petitioner's waste, the EPA urges petitioners to contact the state regulatory authority to establish the status of their wastes under applicable state law. Delisting petitions approved by the EPA Administrator or his delegate pursuant to 40 CFR 260.22 are effective in the State of Montana after the final rule has been published in the Federal Register .

Under Executive Order 12866, “Regulatory Planning and Review,” (58 FR 51735, Oct. 4, 1993) this rule is not of general applicability and, therefore, is not a regulatory action subject to review by the Office of Management and Budget (OMB). This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) because it applies to a particular facility only. Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a particular facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA. Because this rule will affect only a particular facility, this final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism”, (64 FR 43255, Aug. 10, 1999). Thus, Executive Order 13132 does not apply to this rule.

Similarly, because this rule will apply to a particular facility, this final rule does not have tribal implications, as specified in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” (65 FR 67249, Nov. 9, 2000). Thus, Executive Order 13175 does not apply to this rule. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” (62 FR. 19885, Apr. 23, 1997) because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The basis for this belief is that the Agency used DRAS, which considers health and safety risks to children, to calculate the maximum allowable concentrations for this rule. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. This rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988, “Civil Justice Reform”, (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.

For the reasons set out in the preamble, 40 CFR part 261 is amended as follows:

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

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

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

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

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

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

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

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

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

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

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

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

This final rule is accessible via the Internet at the Office of the Federal Register's Web site at http://www.gpo.gov/fdsys/search/home.action. Background information and documents are available at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

The Pacific Coast Groundfish FMP and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Council), and are implemented by NMFS.

On November 3, 2010, NMFS published a proposed rule to implement the 2011-2012 harvest specifications and management measures for most species of the Pacific Coast groundfish fishery (75 FR 67810). The final rule to implement the 2011-12 harvest specifications and management measures for most species of the Pacific Coast Groundfish Fishery was published on May 11, 2011 (76 FR 27508). This final rule was subsequently amended by several inseason actions including the one that is referenced in this action, which published on December 21, 2011 (76 FR 79122).

This inseason action contains a modification to Washington state lingcod recreational management measures implemented in the December 21, 2011, final rule (76 FR 79122).

The Council recommended adjusting the biennial groundfish management measures for the remainder of the biennial period to respond to updated fishery information and other inseason management needs at its November 2-November 6 meeting in Costa Mesa, California. One of the changes included adoption of regulations that would create a lingcod recreational fishing closure off Washington to conform with state regulations. NMFS implemented this change by inseason action on December 21, 2011 (76 FR 79122). As published, the final regulations contained errors within § 660.360(c)(1)(i)(D)( 2 ) of the Code of Federal Regulations (CFR) that may mislead the public and needs to be clarified. This clarification will establish the appropriate language in that paragraph.

In establishing the new closure for lingcod, regulations unintentionally allowed lingcod fishing between a boundary line approximating the 30-fm (55-m) depth contour and the new lingcod closure area from March 15 through June 15. This is inconsistent with the intent of the regulations, which was to close the areas both seaward of the 30-fm (50-m) boundary line and the area seaward of the new lingcod closure line. Those area restrictions would both apply on the dates that were outlined, except on days that the primary halibut fishery is open. As published, the regulations in this paragraph do not fully implement the Council's recommendation. This regulation would be confusing to the public if it is not clarified.

Therefore, as the Council recommended, NMFS is implementing a lingcod recreational fishery area closure as follows: Lingcod fishing is prohibited year round, except in Marine Area 2 on days when the Pacific halibut fishery is open, in the area seaward (West) of a straight line connecting all of the following points in the order stated: 47°31.70′ N. lat., 124°45.00′ W. long.; 46°38.17′ N. lat., 124°30.00′ W. long.; 46°38.17′ N. lat., 124°21.00′ W. long.; and 46°25.00′ N. lat., 124°21.00′ W. long.

This final rule makes routine inseason adjustments to groundfish fishery management measures based on the best available information and is taken pursuant to the regulations implem enting the Pacific Coast Groundfish FMP.

This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.

This inseason adjustment is also taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and is in accordance with 50 CFR part 660, the regulations implementing the FMP. This action is based on the most recent information available.

For the following reasons, NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under 5 U.S.C. 553(b)(3)(B) because notice and comment would be impracticable and contrary to the public interest. Also, for the same reasons, NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective as quickly as possible.

The recently available information upon which the changes to the Washington recreational management measure changes are based was originally provided to the Council, and the Council made its recommendations, at its November 2-6, 2011, meeting in Costa Mesa, California. The Council recommended that these changes be implemented by January 1, 2012 or as quickly as possible thereafter. For the actions to be implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent NMFS from managing fisheries using the best available science to approach, without exceeding, the ACLs for federally managed species in accordance with the FMP and applicable laws. The adjustments to management measures in this document affect recreational fisheries off Washington State.

These adjustments to management measures must be implemented in a timely manner: To conform federal regulations to the new Washington State lingcod recreational fishing area closure prior to the March 17 opening of the recreational fishery. If this rule is not implemented immediately, the public will have incorrect information regarding boundaries used, and allowed fishing activities for groundfish fisheries management, which would cause confusion and be inconsistent with the intent of the December 21, 2011 inseason action. It would be contrary to the public interest to delay implementation of these changes until after public notice and comment, because making this regulatory change immediately allows harvest as intended by the Council in fisheries that are important to coastal communities in a manner that prevents ACLs of overfished species from being exceeded, preventing premature closure of the recreational fishery.

No aspect of this action is controversial and no change in operating practices in the fishery is required from those intended in this inseason adjustment, as state regulations are already in place to the effect of this conforming action.

Delaying these changes would also keep management measures in place that are not based on the best available information. Accordingly, for the reasons stated above, NMFS finds good cause to waive prior notice and comment and the delay in effectiveness.

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

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

The A season allowance of the 2012 total allowable catch (TAC) of pollock in Statistical Area 620 of the GOA is 14,023 metric tons (mt) as established by the final 2011 and 2012 harvest specifications for groundfish of the GOA (76 FR 11111, March 1, 2011) and inseason adjustment (77 FR 438, January 5, 2012).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2012 TAC of pollock in Statistical Area 620 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 13,773 mt and is setting aside the remaining 250 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 620 of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Acting 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 delay the closure of pollock in Statistical Area 620 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 24, 2012.

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

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