In an interim rule published in the Federal Register on March 23, 2009 (74 FR 12055-12058, Docket No. APHIS-2008-0124), we amended the bovine tuberculosis regulations by establishing two separate zones with different tuberculosis risk classifications for the State of New Mexico. (Please note, however, that the State of New Mexico, in a subsequent rule, was declared an accredited-free State and still holds that status). In our March 2009 rule, when we removed New Mexico from the list of modified accredited advanced States, we revised § 77.9(a) and introduced an error by referring to “modified accredited States” when we should have referred to “modified accredited advanced States.” This document corrects that error.

Accordingly, 9 CFR part 77 is corrected by making the following correcting amendment:

On July 30, 2010, we issued AD 2010-17-02, Amendment 39-16392 (75 FR 50871, August 18, 2010). That AD required actions intended to address an unsafe condition on certain Model A330-200 and -300 series airplanes, and Model A340-200, -300, -500, and -600 series airplanes.

Since we issued AD 2010-17-02, Amendment 39-16392 (75 FR 50871, August 18, 2010), we have certified two new models: Model A330-223F and -243F airplanes. We are issuing this AD to include them in the requirements of that earlier AD. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0138, dated July 20, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

We have revised certain headers throughout this AD. We have also revised the wording in paragraph (g)(3) of this AD. This revision does not change the intent of paragraph (g)(3) of AD 2010-17-02, Amendment 39-16392 (75 FR 50871, August 18, 2010).

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

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

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

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0273; Directorate Identifier 2011-NM-149-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed 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:

Authority for This Rulemaking

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Chapter 447, Sections 44701, 44702 and 44703. Under Section 44701 the Administrator has the authority to prescribe regulations and minimum standards for practices, methods and procedures necessary for safety in air commerce and national security. Under Section 44702 the Administrator has the authority to issue certificates. More specifically, under Section 44703(b)(C) the Administrator has the authority to decide terms necessary to ensure safety in air commerce, including terms on the duration of certificates and tests of physical fitness. This rule removes a regulatory provision that requires individuals granted the Special Issuance of a Medical Certificate to have their letter of Authorization in their physical possession or readily accessible on the aircraft while exercising pilot privileges. For this reason, the proposed change is within the scope of the FAA's authority and is a reasonable and necessary exercise of the FAA's statutory obligations.

The FAA is adopting this action without prior notice and prior public comment as a direct final rule. Individuals granted the Special Issuance of a Medical Certificate are required to carry sufficient documentation validating their medical fitness to fly, but should not have the additional burden of carrying their letter of Authorization. The FAA has identified this action as burden-relieving under Executive Order 13563 of January 18, 2011, entitled “Improving Regulation and Regulatory Review,” because affected individuals no longer will have to carry their letter of Authorization with them when exercising pilot privileges. The Regulatory Policies and Procedures of the Department of Transportation (DOT) (44 FR 1134; February 26, 1979) provide that, to the maximum extent possible, operating administrations for the DOT should provide an opportunity for public comment on regulations issued without prior notice. Accordingly, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The Agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting this final rule.

Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received, and confirming the date on which the final rule will become effective. If the FAA does receive an adverse or negative comment within the comment period, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

See the “Additional Information” section for information on how to comment on this direct final rule and how the FAA will handle comments received. The ADDRESSES section contains related information about the docket, privacy, and the handling of proprietary or confidential business information. In addition, there is information on obtaining copies of related rulemaking documents.

As discussed in greater detail throughout this document, this final rule relieves individuals vetted through the FAA special-issuance medical certification process from having to carry their FAA-issued letter of Authorization with them when exercising pilot privileges. Individuals granted special-issuance medical certification are issued a time-limited FAA medical certificate along with a letter of Authorization. Collectively both documents comprise an individual's Authorization. According to FAA records, the FAA issued 28,423 Authorizations in the 2011 fiscal year. Under Executive Order 13563 of January 18, 2011, the FAA identified this action as burden-relieving for affected individuals. This rule imposes no cost on affected pilots. It imposes only a one-time, minor administrative cost to the FAA associated with removing a reference on the FAA medical certificate (FAA Form 8500-9) to the current standard. This rule removes only the requirement to carry the letter of Authorization. It does not remove or modify longstanding operational requirements under Title 14 of the Code of Federal Regulations, Part 61, § 61.3, regarding documentation that must be in an individual's personal possession or readily accessible in the aircraft when exercising pilot privileges.

In November 2007, ICAO, the aviation wing of the United Nations, audited the civil aviation safety oversight system of the United States as part of the ICAO Universal Safety Oversight Audit Program (USOAP). ICAO USOAP teams assess whether signatory states, such as the United States, meet international civil aviation standards. Civil aviation licensing and credentialing system compliance with international standards is a main focus area of these audits. As a result of the 2007 audit, the United States received a finding specifying that certain U.S. licenses are not “systematically endorsed as stipulated by Article 39  1 of the Chicago Convention, when the holders do not satisfy in full the conditions laid down in the international standard with respect to the class of licence (sic) or certificate of holders.”

U.S. pilots who fly internationally must comply with international aviation standards. In cases where ICAO standards may exceed U.S. standards, U.S. pilots take measures to make sure they conform with ICAO standards for international operations. For example, U.S. pilots serving as second-in-command on a U.S.-registered aircraft must hold an FAA commercial pilot certificate and an FAA second-class medical certificate. ICAO standards require commercial pilots to meet ICAO Class 1 medical assessment standards, which include electrocardiography provisions. While ICAO Class 1 medical assessment standards and FAA first-class medical standards include electrocardiography provisions, FAA second-class medical standards do not. When exercising privileges internationally, therefore, U.S. second-in-command pilots would obtain an FAA first-class medical certificate to compensate for the electrocardiography difference. As specified in this example, U.S. pilots exercising privileges internationally take measures necessary to conform to ICAO standards; therefore, the FAA has not found cause to “systematically” endorse medical certificates of U.S. pilots. Explanations provided at the time of the audit in this regard, however, were not sufficient to avoid ICAO's finding for corrective action.

Because Article 39 of the Chicago Convention provides that endorsements may be placed on “or attached to” a license, the focus of the corrective action plan was limited to a small population of pilots who, due to special medical considerations, are granted a time-limited, special-issuance medical certificate along with a letter of Authorization. These individuals, the FAA determined, are most likely to be most impacted by the ICAO finding. The letter of Authorization serves as an addendum to the special-issuance medical certificate for affected individuals, and provides information regarding conditions affected individuals must meet in order to exercise pilot privileges. The FAA determined that a corrective action requiring, in part, that individuals carry their Authorization when exercising pilot privileges would be more acceptable than developing and implementing burdensome new licensing procedures for all pilots.

Therefore, on July 24, 2008, the FAA issued a final rule (73 FR 43059) that amended § 67.401 to add new paragraph (j) requiring individuals holding an Authorization to carry it with them when exercising pilot privileges. In addition to this regulatory requirement, the FAA also revised the FAA medical certificate (FAA Form 8500-9) not only to note this requirement for affected medical certificate holders, but also to add more elaborate regulatory references and instructions for all pilots, including instructions to consult the U.S. Aeronautical Information Publication, which contains a listing of U.S. differences with ICAO Standards and Recommended Practices, when flying internationally. By adding several important regulatory references and instructions on the medical certificate, as suggested during the ICAO audit, the FAA met the intent of the ICAO audit finding. The regulatory references and instructions added to the medical certificate will remain as enumerated on FAA medical certificates, only the “Note” making reference to the letter of Authorization will be removed by this action.

Before an Authorization is granted, applicants must be thoroughly vetted through a lengthy and rigorous FAA medical certification process. As specified under § 67.401, individuals with specifically disqualifying medical conditions are medically certificated only when they can demonstrate to the satisfaction of the Federal Air Surgeon that the duties authorized by the class of medical certificate applied for can be performed without endangering public safety for the period of time the certificate is held. To demonstrate ability, a special medical flight test, practical test, extensive medical evaluation, or any combination of these may be required. An individual's operational experience and any medical facts that may affect the ability of the individual to perform airman duties is taken into consideration before medical certification is granted.

With such a viable and rigorous special-issuance medical certification process, the FAA did not anticipate an ICAO audit finding that would result in further regulatory requirements. As such, adding § 67.401 (j) to require affected individuals to carry their letter of Authorization was not an expected outcome of the ICAO audit, but was put forth as a negotiated compromise in the audit corrective action plan. The § 67.401 (j) requirement has not been well-received by affected U.S. pilots. The FAA continues to receive complaints from affected U.S. pilots that the full force of the requirement is overly burdensome as well as invasive. It was imposed, however, out of concern that traditional enumeration placed on U.S. medical certificates under the FAA's special-issuance medical certification process might not be detailed enough for affected U.S. pilots during a ramp check in a foreign country, for example. Having the letter of Authorization readily available was deemed to be in the affected pilots' best interest. With 3 years of experience under the rule, however, the FAA is not aware that any civil aviation authority has requested any affected U.S. pilot to produce a letter of Authorization.

In August 2010, the FAA informed ICAO that the U.S. would prefer to remove this requirement, and received no objection to this request. In addition, in April 2011, the FAA conducted a briefing on this matter for a member of the ICAO Air Navigation Commission, indicating that, unless objections were raised, the United States would proceed to revise the regulation to make it less burdensome. The series of new regulatory references and instructions added to all U.S. medical certificates provides sufficient information to medical certificate holders regarding the need for compliance with international standards when exercising pilot privileges.

This action, therefore, removes paragraph (j) of § 67.401 and deletes the “Note” on FAA medical certificates under the header “Conditions of Issue,” which directs affected individuals to carry their letter of Authorization. This action does not affect longstanding FAA operational requirements under § 61.3 regarding FAA certificates that must be carried while exercising pilot privileges, including FAA medical certificates.

Paragraph (j) of § 67.401 no longer will apply once this rule becomes effective. This means that the “Note” under the regulatory reference to § 67.401 (j) listed under the “Conditions of Issue” on an individual's existing FAA medical certificate no longer will be necessary. This does not mean that the FAA needs or intends to re-issue medical certificates. It will be acceptable for the FAA medical certificate to reference this “Note” until an individual's medical certificate is renewed. The FAA will begin using medical certificates with updated “Conditions of Issue” that do not include reference to the removed standard as soon as possible following the effective date of the rule.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this proposed rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this direct final rule. The reasoning for this determination follows:

The benefit of this direct final rule will be that it relieves approximately 28,000 airmen vetted through the FAA special-issuance medical certification process from having to carry their FAA-issued letter of Authorization with them when they fly.

This rule removes a regulatory provision that requires airmen who have been granted the Special Issuance of a Medical Certificate to have their letter of Authorization in their physical possession or readily accessible on the aircraft while exercising pilot privileges. The only cost associated with this rule is FAA manpower cost associated with making a revision to the FAA medical certificate (FAA Form 8500-9) to remove a reference to the standard that is being removed.

We estimate that it will take an FAA information technology program manager approximately 8 hours to make the revision to the FAA medical certificate. With a burdened labor rate of $115, the total cost is $923 ($863 present value).

The FAA has, therefore, determined that this final rule is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866 and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

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

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

This rule is burden-relieving; it imposes no cost on affected pilots. Consequently, as the Acting FAA Administrator I certify that the final rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this direct final rule and determined that it will primarily have only a domestic impact and therefore no effect on international trade.

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

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

This rule is burden-relieving. No information collection is associated with the removal of the requirement for affected individuals to carry their letter of Authorization or with the removal of certain notation on medical certificates. The Office of Management and Budget (OMB) has approved the collection of information associated with medical certification in accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under OMB Control Number 2120-0034, valid through August 31, 2014.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. Prior to adopting this action, the FAA consulted with ICAO counterparts in the ICAO Aviation Medicine Section and on the ICAO Air Navigation Commission to inform them this action is being taken. The FAA did not receive any objections to removing this regulatory provision.

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

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The Agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the rulemaking action in this document. The most helpful comments reference a specific portion of the rulemaking action, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking. Before acting on this rulemaking action, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The Agency may change this rulemaking action in light of the comments it receives.

An electronic copy of rulemaking documents may be obtained from the Internet by—

1. Searching the Federal eRulemaking Portal ( http://www.regulations.gov );

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

3. Accessing the Government Printing Office's Web page at http://www.gpo.gov/fdsys/.

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

All documents the FAA considered in developing this rulemaking action, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.

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

The FAA is adjusting the geographic location of Hernando County Airport, Brooksville, FL, to be in concert with the FAAs aeronautical database, which shows the correct coordinates. This is an administrative change and does not affect the boundaries or operating requirements of the airspace, therefore, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.

The Class D and E airspace designations are published in Paragraphs 5000, 6002, and 6005 of FAA order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the geographic coordinates in the legal description of Class D airspace, Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface, for Hernando County Airport, Brooksville, FL. This update brings the geographic coordinates of the airport in concert with the FAA's Aeronautical Products database.

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

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

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

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

On December 22, 2011, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace 700 feet above the surface at Bellefonte, PA (76 FR 79564). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface to support new standard instrument approach procedures developed at Bellefonte Airport, Bellefonte, PA. This enhances the safety and management of IFR operations at the airport.

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

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

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

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

Section 126.1(n) is amended to implement section 7046(d) of Public Law 112-74, which provides that the policy of denial for defense export licenses for Sri Lanka will not apply to assistance for aerial and maritime surveillance.

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

Since this amendment is not subject to 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

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

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

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

The Department is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules governing the conduct of this function are exempt from the requirements of Executive Order 12866. However, the Department has reviewed the rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Order.

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

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

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, Executive Order 13175 does not apply to this rulemaking.

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

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, part 126 is amended as follows:

Background on Wine Labeling TTB Authority

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act requires that these regulations, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.

Part 4 of the TTB regulations (27 CFR part 4) sets forth standards promulgated under the FAA Act for the labeling and advertising of wine. Section 4.25 of the TTB regulations (27 CFR 4.25) sets forth rules regarding the use of appellations of origin. An appellation of origin for an American wine is defined in § 4.25(a)(1) as:

• The United States;

• A State;

• Two or no more than three States which are all contiguous;

• A county;

• Two or no more than three counties in the same State; or

• A viticultural area as defined in § 4.25(e).

Section 4.25(b)(1) states that an American wine is entitled to an appellation of origin other than a multicounty or multistate appellation, or a viticultural area, if, among other requirements, at least 75 percent of the wine is derived from fruit or agricultural products grown in the appellation area indicated. Use of an appellation of origin comprising two or no more than three States which are all contiguous is allowed under § 4.25(d) if:

• All of the fruit or other agricultural products were grown in the States indicated, and the percentage of the wine derived from fruit or other agricultural products grown in each State is shown on the label with a tolerance of plus or minus 2 percent;

• The wine has been fully finished (except for cellar treatment pursuant to 27 CFR 4.22(c) and blending that does not result in an alteration of class or type under 27 CFR 4.22(b)) in one of the labeled appellation States; and

• The wine conforms to the laws and regulations governing the composition, method of manufacture, and designation of wines in all the States listed in the appellation.

An appellation of origin for imported wine is defined in § 4.25(a)(2) as:

• A country;

• A state, province, territory, or similar political subdivision of a country equivalent to a state or county; or

• A viticultural area (which is defined in § 4.25(e)(1)(ii) in the case of imported wine).

Section 4.25(b)(2) states that an imported wine is entitled to an appellation of origin other than a viticultural area if: “(1) At least 75 percent of the wine is derived from fruit or agricultural products grown in the area indicated by the appellation of origin; and (2) the wine conforms to the requirements of the foreign laws and regulations governing the composition, method of production, and designation of wines available for consumption within the country of origin.” There is no provision in the current TTB regulations for the use of multistate appellations on imported wines.

The existing regulations regarding appellations of origin, including the provisions permitting multistate appellations for American wines, were promulgated by TTB's predecessor agency, the Bureau of Alcohol, Tobacco and Firearms (ATF), in T.D. ATF-53 (43 FR 37672), published August 23, 1978. The preamble of T.D. ATF-53 stated that the regulations provided “a comprehensive scheme for appellation of origin labeling” resulting in “more accurate information being provided to consumers about wine origin.” According to T.D. ATF-53, multistate appellations were suggested by domestic wine industry members. ATF decided to allow multistate appellations “in order to permit greater flexibility in appellation of origin labeling,” provided that all the grapes come from the named States, that the percentage of grapes from each State be shown on the label, and that the wine conform to the laws and regulations governing the composition, method of manufacture, and designation of wines in all of the States listed in the appellation. There was no discussion in T.D. ATF-53 regarding multistate appellations for foreign wines, including why multistate appellations were limited to American wines.

The Australian Wine and Brandy Corporation (AWBC), a quasi-governmental authority responsible for, among other activities, regulating the exportation of Australian wine, submitted a petition to TTB to amend § 4.25(a)(2) to permit the labeling of Australian wines with multistate appellations. This proposal would allow an Australian wine imported into the United States to bear an appellation comprised of two or three Australian States, such as “Victoria-New South Wales-South Australia.” According to the AWBC petition, Australian regulations allow wines to be labeled with up to three Geographical Indications (officially defined wine regions) provided that 95 percent of the product is from the listed regions, the regions are listed in descending order of their proportions in the blend, and a minimum of 5 percent of the wine is from each listed region. Australian Geographical Indications include Australian States, which are roughly equivalent to American States.

On November 3, 2010, TTB published Notice No. 110 in the Federal Register at 75 FR 67663 proposing to amend § 4.25 to permit the use of multistate appellations for imported wines. The notice proposed, among other requirements, that the regions named in multistate appellations be contiguous and that 100 percent of the wine be derived from fruit or other agricultural products grown in those regions. These requirements mirror the current requirements, discussed above, for multistate appellations on American wines.

TTB received four comments in response to Notice No. 110. The commenters were: (1) An Australian winery; (2) the Australian Department of Foreign Affairs and Trade; (3) New Zealand Winegrowers, a trade organization; and (4) the Government of New Zealand. All four commenters generally support the proposal to allow multistate appellation labeling on imported wines. However, three of the commenters express concerns about certain aspects of the proposal.

The Australian Department of Foreign Affairs and Trade expresses concern about the requirement that all the named areas be contiguous, a requirement that duplicates that for American wine contained in 27 CFR 4.25(d). The commenter states that this requirement would preclude Tasmania, an island, from being included in a multistate appellation. Further, in contrast to the 100 percent rule proposed by TTB, the commenter notes that Australian regulations allow up to three Australian States and Territories to be included on a label so long as 95 percent of the product is from the listed regions and at least 5 percent of the wine is from each listed region. This commenter suggests that the United States engage in further discussion on this issue.

The New Zealander Winegrowers states that contiguity would be a difficult requirement for them due to their geography because large islands constitute most of the country.

Finally, the Government of New Zealand notes the absence of a “contiguous” requirement in New Zealand law and also points out that its rules for appellations of more than one region require that only 85 percent of the wine be from the named regions rather than 100 percent as proposed by TTB. The commenter states that their preferred approach is that foreign wines with multistate appellations be labeled according to the rules of the country of origin.

In Notice 110, TTB stated its intention to provide treatment for imported wines bearing multistate appellations similar to that which is currently available for domestic wines bearing multistate appellations. The Bureau believes that the proposed regulatory amendments would achieve that goal and provide for fair and equitable treatment of imported and domestic wines, including the requirement questioned by some commenters that multistate appellations be contiguous for foreign wines. Contiguity is already required for domestic wines; therefore TTB is requiring it for foreign wines in this rule as well.

The Bureau and its predecessor have long interpreted the term “contiguous,” as it appears in 27 CFR 4.25(a)(1)(iii), to include two States which actually touch at a point along a common boundary, or three States which are connected throughout in an unbroken sequence. See ATF Ruling 91-1 (1991), http://www.ttb.gov/rulings/2001-2.htm. For example, North Dakota and South Dakota are contiguous, as are South Dakota and Nebraska. North Dakota, South Dakota and Nebraska are also contiguous for the purpose of using three States in a multistate appellation on a wine label, even though North Dakota and Nebraska, without South Dakota, are not contiguous with one another and could not be used together on a wine label. A similar interpretation of the term contiguous will be applied to foreign appellations, where two states, territories or other applicable political subdivisions should actually touch at a point along a common boundary and where three such subdivisions are connected throughout in an unbroken sequence.

For land boundaries, TTB expects the contiguous requirement to operate equally for foreign and domestic wines. However, as some commenters point out, island geography and maritime borders present additional considerations for determining whether or not two states, territories or other applicable political subdivisions are contiguous.

In the domestic context under existing regulations, TTB still looks for the two States separated by water to actually touch at a point along their common maritime border. For example, the States of Rhode Island and New York are considered contiguous (although separated by water and sharing no common land boundary), because they actually touch at a point along a common maritime border in Block Island Sound; whereas the States of Indiana and Wisconsin are not considered contiguous, even though also separated by a body of water common to both (Lake Michigan). In the latter example, Indiana and Wisconsin are not contiguous because they do not actually touch at a point along a common maritime border within Lake Michigan, as the maritime borders of the States of Illinois and Michigan intervene instead.

In the international context, after consultation with the U.S. Department of State, TTB recognizes that maritime borders within the territorial seas of a nation are determined by the domestic laws of that nation and that subnational (e.g., state) borders are delineated by other nations in myriad ways or for a variety of purposes that may differ from how maritime borders are delineated in the United States. (The United States grants to its coastal States a right to the territorial seas of the United States to a certain limit, thereby establishing common maritime borders between States similar to those on land). TTB believes it would be inappropriate to strictly apply its interpretation of the term contiguous for domestic wines, particularly as to the issue as to what constitutes a common maritime border, to foreign wines without considering the position of the foreign nation concerning its own subnational maritime borders. Therefore, foreign states, territories, or other applicable political subdivisions may be considered contiguous, for purposes of this rule, so long as the label applicant, in conjunction with the government of the country of origin, can demonstrate to TTB that the political subdivisions sharing a common maritime border actually touch at a point along such border for a nationally- and/or internationally-recognized purpose (e.g., a common maritime border for fishing or mineral rights jurisdiction).

TTB will consider the facts and evidence submitted by the label applicant and government of the country of origin on a case-by-case basis to establish whether the multiple appellations are contiguous. Foreign governments are also encouraged to provide TTB with information demonstrating the contiguity of their various states, territories, or other applicable political subdivisions, in order to assist TTB with its label review in advance of TTB's receipt of label applications that would be subject to this requirement. Lack of information supporting the contiguity of a multistate appellation could result in TTB having to reject a label application.

For the reasons set forth above, TTB believes it would be appropriate to adopt the proposed regulatory changes contained in Notice 110. In addition, TTB has noted a technical error in § 4.25(a)(1)(v): The word “States” should be singular, not plural. Accordingly, this document removes the second “s” from “States” to correct the error.

TTB certifies under the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this final rule will not have a significant economic impact on a substantial number of small entities. The amendments merely provide optional, additional flexibility in wine labeling decisions. Accordingly, a regulatory flexibility analysis is not required.

This final rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

Jennifer Berry of the Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, drafted this document.

For the reasons discussed in the preamble, TTB amends 27 CFR part 4, Labeling and Advertising of Wine, as set forth below:

Background on Viticultural Areas TTB Authority

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). The Secretary has delegated various authorities through Treasury Department Order 120-01 (Revised), dated January 21, 2003, to the TTB Administrator to perform the functions and duties in the administration and enforcement of this law.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas and lists the approved American viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and a name and a delineated boundary as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographic origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of American viticultural areas. Such petitions must include the following:

• Evidence that the area within the proposed viticultural area boundary is nationally or locally known by the viticultural area name specified in the petition;

• An explanation of the basis for defining the boundary of the proposed viticultural area;

• A narrative description of the features of the proposed viticultural area that affect viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed viticultural area distinctive and distinguish it from adjacent areas outside the proposed viticultural area boundary;

• A copy of the appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed viticultural area, with the boundary of the proposed viticultural area clearly drawn thereon; and

• A detailed narrative description of the proposed viticultural area boundary based on USGS map markings.

TTB received a petition from Steven J. DeBaker of Trout Springs Winery in Green Leaf, Wisconsin, to establish the “Wisconsin Ledge” American viticultural area. The proposed viticultural area contains approximately 3,800 square miles, with approximately 320 acres of vineyards in at least 14 commercially-producing vineyards and wineries, and an additional 70 acres projected to be planted within the next two years. A map that was submitted with the petition shows that the commercial vineyards and wineries are geographically dispersed throughout the proposed viticultural area. The proposed Wisconsin Ledge viticultural area lies in Door, Kewaunee, Manitowoc, Sheboygan, Ozaukee, Washington, Dodge, Fond du Lac, Calumet, Outagamie, and Brown Counties of northeast Wisconsin and does not overlap, or otherwise involve, any existing or proposed viticultural area.

The proposed Wisconsin Ledge viticultural area is largely surrounded by water, including Lake Winnebago, the Fox River, Green Bay, and Lake Michigan. According to the petition, the region is heavily affected by the lasting effects of ancient glacial activity and the moderating marine influence of the surrounding bodies of water.

TTB published Notice No. 121 in the Federal Register on October 14, 2011 (76 FR 63852), proposing to establish the Wisconsin Ledge viticultural area. In the notice, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed viticultural area. The distinguishing features of the proposed area are its geology, geography, climate, hydrology, and soils. The notice also included a comparison of the distinguishing features to the surrounding area. For a description of the evidence relating to the name, boundary, and distinguishing features of the proposed viticultural area, see Notice No. 121.

In Notice No. 121, TTB solicited comments on the accuracy of the name, boundary, climactic, and other required information submitted in support of the petition. The comment period closed on December 13, 2011.

TTB received 29 comments in response to Notice No. 121. The commenters included 12 self-identified wine industry members, 2 Wisconsin wine industry associations, a Wisconsin State representative, 2 local planning commissions, a local environmental group, a local science museum, and 10 commenters who did not list any affiliation. All of the comments expressed support for the proposed Wisconsin Ledge viticultural area.

After careful review of the petition and the comments received in response to Notice No. 121, TTB finds that the evidence provided by the petitioner supports the establishment of the approximately 3,800 square mile Wisconsin Ledge viticultural area, as proposed in Notice No. 121. Accordingly, under the authority of the Federal Alcohol Administration Act and part 4 of the TTB regulations, TTB establishes the “Wisconsin Ledge” viticultural area in Door, Kewaunee, Manitowoc, Sheboygan, Ozaukee, Washington, Dodge, Fond du Lac, Calumet, Outagamie, and Brown Counties of northeast Wisconsin, effective 30 days from the publication date of this document.

In this final rule, TTB made minor editorial changes to clarify some of the language in the written boundary description published as part of Notice No. 121. See the narrative boundary description of the viticultural area in the regulatory text published at the end of this notice.

The petitioner provided the required maps, and TTB lists them below in the regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. With the establishment of this viticultural area, its name, “Wisconsin Ledge,” is recognized as a name of viticultural significance under 27 CFR 4.39(i)(3). The text of the new regulation clarifies this point. Once this final rule becomes effective, wine bottlers using “Wisconsin Ledge” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use “Wisconsin Ledge” as an appellation of origin.

For a wine to be labeled with a viticultural area name or with a brand name that includes a viticultural area name or other term identified as being viticulturally significant in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with the viticultural area name or other viticulturally significant term and that name or term appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other viticulturally significant term appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label.

Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

Karen A. Thornton of the Regulations and Rulings Division drafted this document.

For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:

On March 16, 2012, the Department of Defense published a direct final rule titled Privacy Act of 1974; Implementation. Subsequent to the publication of that direct final rule, Department of Defense discovered that the system identifier “DMDC 13” in § 311.8(c)(17) should have read “DMDC 11”.

In the final rule (FR Doc. 2012-6167) published on March 16, 2012 (77 FR 15587-15588), make the following correction:

On July 13, 2011, the Puerto Rico Environmental Quality Board (PREQB) submitted to EPA a request for approval of revisions to the Puerto Rico Regulations for the Control of Atmospheric Pollution (PRRCAP). In the context of the Clean Air Act (CAA or Act), the Commonwealth of Puerto Rico is regarded as a state. Generally the changes to the PRRCAP involve administrative changes which improve the clarity of the rules. They do not change the emission limitations nor add significant new requirements.

Most of the revisions consist of clarification type changes such as public law or code cites or word changes. A summary of the various revisions is given below. EPA has determined that the revisions improve the effectiveness of the PRRCAP and will have no negative effect on maintaining the national ambient air quality standards.

PREQB revised two definitions in the revised Rule 102. They include the definition for “Volatile Organic Compounds (VOC)” and the definition for “Applicable Rule and Regulation.” PREQB revised the VOC definition to make it consistent with EPA's definition for VOC found in 40 CFR section 51.100. The revision to the “Applicable Rule and Regulation” definition includes a change to the citation of Puerto Rico's Environmental Public Policy Act. It was previously referenced in the definition as Law No. 9 of June 18, 1970. That Law was replaced by Law No. 416 of September 22, 2004.

PREQB also revised Appendix A to the PRRCAP. PREQB revised Appendix A to make it consistent with EPA's amended list of hazardous air pollutants in CAA section 112. Appendix A is referenced in the federally approved definition of Rule 102—“Hazardous Air Pollutant” of the PRRCAP.

PREQB revised Rules 111 and 115 in order to change the citation to Puerto Rico's Environmental Public Policy Act. It was previously referenced in Rules 111 and 115 as Law No. 9 of June 18, 1970. That Law was replaced by Law No. 416 of September 22, 2004.

PREQB revised Rule 116 in order to revise the citation of the applicable Puerto Rico code. Rule 116 previously referenced Article 329 of the Penal Code of Puerto Rico and this reference was replaced with Article 277 of the Civil Prosecution Code of Puerto Rico.

None of the revisions to Rules 102, 111, 115, 116 or Appendix A of the PRRCAP involve changing the stringency of these provisions. EPA has thoroughly reviewed all of the revisions contained in these rules and has determined they meet EPA guidance and requirements; therefore, EPA is approving these revised rules. However, with regard to the revisions to the definition of VOC in Rule 102 and Appendix A, which are intended to achieve consistency with the CAA Section 112 list of chemicals, it is important to note that the CAA Section 112 list could potentially be revised by EPA and, for federal enforcement purposes, EPA will rely on the federally issued CAA Section 112 list.

PREQB also submitted a revision to Rule 609(g), “Confidential information” of the PRRCAP on July 13, 2011. The revisions to Rule 609 include the citation for Puerto Rico's Environmental Public Policy Act. It was previously referenced as Law No. 9 of June 18, 1970. That Law has subsequently been replaced by Law No. 416 of September 22, 2004. Rule 609 was never approved into the federally enforceable SIP for Puerto Rico since the provisions of Rule 609 are relevant to the Title V of the Act requirements. The federally approved SIP reflects only Title I of the Act requirements and not Title V. Therefore, EPA is not approving the revisions to Rule 609 into the federally enforceable Puerto Rico SIP. However, EPA is approving the revision to Rule 609 as part of the federally approved Puerto Rico Title V operating permits program. Rule 609 and the Puerto Rico Title V program were previously approved by EPA on February 26, 1996 (61 FR 7073).

The revisions to Rules 102, 111, 115, 116 and Appendix A of the PRRCAP, effective February 18, 2011, are generally administrative changes, which improve the clarity of the rules. They do not change emission limitations nor add significant new requirements. EPA has thoroughly reviewed all of the revisions contained in these rules and has determined they meet EPA guidance and requirements. EPA is therefore approving revised PRRCAP Rules 102, 111, 115, 116 and Appendix A into the SIP. In addition, EPA is approving revised Rule 609 of the PRRCAP, effective February 18, 2011, as part of the federally approved Puerto Rico Title V operating permits program.

The 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 May 21, 2012 without further notice unless the Agency receives adverse comments by April 23, 2012.

If the EPA receives adverse comments, then EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 21, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Parts 52 and 70, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Here are the contents of today's preamble.

Entities that would be affected by this final rule are those organizations and facilities subject to section 302 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and its implementing regulations found in 40 CFR part 355, subpart B—Emergency Planning. To determine whether your facility is affected by this action, you should carefully examine the applicability provisions at 40 CFR part 355. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

This final rule is being issued under the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), which was enacted as Title III of the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499), (SARA). The Agency relies on EPCRA section 328 for general rulemaking authority.

Title III of SARA (EPCRA) establishes authorities for emergency planning and preparedness, emergency release notification reporting, community right-to-know reporting, and toxic chemical release reporting. It is intended to encourage state and local planning for, and response to releases of hazardous substances and to provide the public, local governments, fire departments, and other emergency officials with information concerning potential chemical hazards present in their communities. The implementing regulations for emergency planning, emergency release notification, and the chemicals subject to these regulations are codified in 40 CFR part 355. The implementing regulations for community right-to-know reporting (or hazardous chemical reporting) are codified in 40 CFR part 370.

Subtitle A of EPCRA establishes the framework for local emergency planning. The statute requires that EPA publish a list of extremely hazardous substances (EHSs). The EHS list was established by EPA to identify chemical substances that could cause serious irreversible health effects from accidental releases (52 FR 13378, April 22, 1987). The Agency was also directed to establish a threshold planning quantity (TPQ) for each extremely hazardous substance.

Under EPCRA section 302, a facility that has an EHS on-site in excess of its TPQ must notify the State Emergency Response Commission (SERC) and Local Emergency Planning Committee (LEPC), as well as participate in local emergency planning activities. Under EPCRA section 304, the facility owner or operator must report accidental releases of EHSs and hazardous substances listed under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 40 CFR 302.4 in excess of the reportable quantity (RQ) to their LEPC and SERC, and to the National Response Center if the chemical is a CERCLA hazardous substance.

Under ECPRA sections 311 and 312, facilities that have either (1) a hazardous chemical present at or above 10,000 pounds or (2) an EHS present at or above its TPQ or 500 pounds—whichever is the lesser, are required to submit an Emergency and Hazardous Chemical Inventory form and a Material Safety Data Sheet (MSDS) for that chemical to their SERC, LEPC and local fire department. A chemical is hazardous as defined under the Hazard Communication Standard (HCS) of the Occupational Safety and Health Act (OSHA).

In a July 26, 1990 Federal Register notice (55 FR 30632), EPA added definitions necessary to designate Indian Tribes as the implementing authority of the emergency planning reporting and notification requirements and hazardous inventory reporting requirements. Under 40 CFR 355.61 and 40 CFR 370.66, when a facility is located in Indian Country, SERC means the Emergency Response Commission for the Tribe under whose jurisdiction the tribe is located. Such a Tribal Emergency Response Commission is known as a TERC.

The purpose of the EHSs list is to focus initial efforts in the development of state and local contingency plans. Inclusion of a chemical on the EHSs list does not mean state or local communities should ban or otherwise restrict use of a listed chemical. Rather, such identification indicates a need for the community to undertake a program to investigate and evaluate the potential for accidental exposure associated with the production, storage or handling of the chemical at a particular site and develop a chemical emergency response plan around those risks.

The list of EHSs and their TPQs are codified in 40 CFR part 355, Appendices A and B. EPA first published the EHSs list and corresponding TPQs along with the methodology for determining the TPQs as an interim final rule on November 17, 1986 (51 FR 41570). In the final rule of April 22, 1987 (52 FR 13378), EPA made a number of revisions. Among other things, the final rule republished the EHSs list, added four new chemicals, and revised the methodology for some TPQs. The final rule also defined TPQs for EHS solids in solution, based on comments on the interim final rule. Details of the methodology used in determining whether to list a substance as an EHS and deriving the TPQs are found in the November 1986 and April 1987 Federal Register notices and in the technical support documents, 1 all found in the docket for this rulemaking.

The TPQs were initially assigned based on a ranking scheme using a Level of Concern (LOC) based on acute toxicity and the potential for airborne dispersion. The TPQ methodology is described in detail in the “Threshold Planning Quantities Technical Support Document” dated April 7, 1987, which can be found in the docket for this rulemaking. For each chemical, a ranking index was calculated which equaled the LOC divided by an air dispersion factor (V). Chemicals were assigned TPQs of 1, 10, 100, 500, 1000 or 10,000 pounds based on the order of magnitude ranges of the index values. For gases, V = 1, while for liquids, V was based on a volatilization model using the molecular weight and boiling point of the chemical.

Solid EHS chemicals with a particle size less than 100 microns in diameter, molten solids, solids in solution, and solids with a National Fire Protection Association (NFPA) reactivity rating of 2, 3, or 4 were assigned a V equal to 1. If the EHS solid did not have a particle size less than 100 microns, was not molten or handled in solution form, and did not have an NFPA reactivity rating of 2, 3, or 4, then the EHS chemical was assigned a TPQ of 10,000 pounds, which corresponds to the highest index value. Solids with a NFPA reactivity rating of 2, 3, or 4 are denoted with an “a” in the Notes column of the EHSs list. For solids in molten form, before applying the TPQ, the amount of chemical on-site at any time is multiplied by an adjustment factor of 0.3 to conservatively account for the maximum volatilization of the spilled molten substance that is likely to take place.

EPA has since amended the EHSs list and deleted 51 chemicals. Ten chemicals were deleted based on the request of petitioners and the remaining 41 chemicals were deleted as a result of Agency review. The chemicals were deleted because they did not meet the toxicity criteria for the list and/or were originally listed in error. Petitions requesting the deletion of two chemicals, paraquat dichloride (which is discussed below) and isophorone diisocyante have been denied. Isophorone diisocyanate was not deleted from the EHSs list because its inhalation toxicity met the EHSs listing criteria.

EPA has also changed the TPQs for some of the EHSs. In the April 22, 1987 final rule, EPA reduced the TPQs for 36 substances, while it raised the TPQs for 12 substances based on updated acute toxicity data. Since then, EPA has lowered the TPQ for muscimol because of a typographical error in a prior rulemaking; EPA has raised the TPQ for isophorone diisocyanate because it was mistakenly based on a physical state of reactive solid, when it is actually a liquid; and EPA has denied a petition to raise the TPQs for azinphos methyl and fenamiphos.

Paraquat dichloride was originally listed as paraquat with a CAS No. 1910-42-5 on the final EHSs list. ICI Americas submitted a petition in October 1989 that requested the Agency to remove paraquat from the EHSs list or alternatively, revise the TPQ. On October 12, 1994 (59 FR 51816), EPA changed the listed chemical name from paraquat to paraquat dichloride to match the CAS Number and denied the petition to delete paraquat or modify the TPQ, because the inhalation toxicity of paraquat dichloride met the EHS listing criteria. Further explanation of EPA's rationale for denying the petition can be found in the October 12, 1994 final rule (59 FR 51816) and in the April 15, 2011 proposed rule (76 FR 21299) for modifying the application of TPQs for EHS solids in solution.

In November 1999, Zeneca (formerly ICI Americas) requested that EPA reconsider either removing paraquat dichloride from the EHSs list or raising its TPQ. Zeneca claimed that the form of the chemical used in inhalation toxicity tests (temporarily atomized powder under laboratory conditions) is not relevant data to use for listing paraquat dichloride. Zeneca believed that it was highly unlikely that inhalable particles or vapors of paraquat dichloride could become airborne during an accidental release. Zeneca did not agree with the rationale EPA used to assign a TPQ of 10 pounds to paraquat dichloride, which is only manufactured, processed and used in solution form. Zeneca claimed that EPA did not explain why a greater potential for airborne dispersion for solids in solution exists as opposed to liquid chemicals.

On October 11, 2000, Syngenta (formerly Zeneca) filed an action in U.S. District Court for the District of Columbia under the Administrative Procedures Act seeking judicial review of EPA's decisions regarding paraquat dichloride. In this complaint, Syngenta requested EPA to either delete paraquat dichloride from the EHSs list or raise its TPQ. In their complaint, Syngenta did not agree with EPA's rationale to assign a lower TPQ of 10 pounds to paraquat dichloride, which is only manufactured, processed and used in solution form. Syngenta also claimed that EPA did not explain why it assumed a greater potential for airborne dispersion for solids in solution, as opposed to liquid chemicals. In addition, Syngenta argued that paraquat dichloride solution is basically a non-volatile salt dissolved in water, and that the physical and chemical characteristics of many solids like paraquat dichloride limit their capacity to become airborne.

On January 23, 2003, EPA filed a Motion for Voluntary Remand in order to reconsider the petition. The court granted EPA's motion and dismissed Syngenta's complaint on January 31, 2003. By order of February 24, 2003, the court denied Syngenta's Motion to Amend Judgment. EPA again reviewed the request to delete paraquat dichloride and/or to raise its TPQ. In a November 21, 2003, letter to the petitioner, EPA reaffirmed its denial to delete paraquat dichloride from the EHSs list. EPA concluded that the acute toxicity of paraquat dichloride meets the criteria for listing it as an EHS chemical. In the same letter to the petitioner (available in the docket), however, EPA agreed to consider a revision to the TPQ for paraquat dichloride in the context of a proposed rule to amend the TPQ for all EHS chemicals handled as solids in solution.

In the proposed rule of April 15, 2011 (76 FR 21299), EPA proposed that facilities who are subject to the emergency planning notification requirements under section 302 of EPCRA, and who have a non-reactive solid EHS in solution on-site, should multiply the amount of the non-reactive solid chemical (in solution form) by 0.2 before determining if this reduced quantity equals or exceeds the lower published TPQ. This change was proposed based on data in the literature that shows less potential for non-reactive solid chemicals in solution to remain airborne beyond a facility's fenceline in the event of an accidental release. This change affects not just paraquat dichloride solution, but all EHS solid chemicals in solution, except reactive solids. The application of a reducing factor to the amount of non-reactive EHS solids in solution before comparison to its TPQ is similar to how facilities apply the TPQs for EHSs that are molten solids, except that for molten solids the factor is 0.3. 2 EPA also defined solution to be any aqueous or organic solutions, slurries, viscous solutions, suspensions, emulsions, or pastes.

However, this change will not apply to the 12 solid EHS chemicals that are reactive solids (denoted with “a” in the “Notes” column in Appendix A or B of 40 CFR part 355). Reactive solids are more likely than other solids to be dispersed into the air due to the energy or heat created from their reactivity with water or air. The explanation for not assigning a 10,000 pounds TPQ to each of the reactive solids is discussed in the document, “Reactive Solids Whose Threshold Planning Quantities Should Be Less Than 10,000 Pounds,” April 7, 1987, which can be found in the docket to this rulemaking.

Previously, EPA had assumed that 100% of non-reactive EHS solid chemicals in solution could become airborne in the event of an accidental release. Review of the literature data for accidental releases of liquid aerosols shows that no more than 20% of the release is expected to remain airborne. The data is from a 1994 U.S. Department of Energy (USDOE) report  3 (available in the docket) on the airborne release fraction (ARF) from experimental liquid aerosol releases involving metal salt solutions for a wide variety of release scenarios. EPA based the 0.2 factor on the scenario with the highest release potential in order best to serve the purposes of emergency planning. A summary of the USDOE aerosol release scenarios with the highest ARFs are listed in a table in the April 15, 2011 proposed rule (76 FR 21299). A more detailed discussion, along with the alternative approaches considered, can be found in the April 15, 2011 proposed rule and in the “Technical Support Document for Revised TPQ Method for EHS Solids in Solution” in the docket for this rule.

EPA's revised TPQ methodology for non-reactive EHS solids in solution and supporting data was peer reviewed and the technical support document was revised based on peer review comments. The results of the peer review and response to peer review comments are found in a separate document, “Peer Review of Technical Support Document for Revised TPQ Method for EHS Solids in Solution,” which is available in the docket to this rulemaking. A summary of the peer reviewer's comments and EPA responses to them are presented in the April 15, 2011 proposed rule (76 FR 21299).

This final rule revises the manner for applying the TPQ for the 157 non-reactive EHS chemicals that are handled as solids in solution. These 157 chemicals appear with two TPQs, (the higher TPQ is 10,000 pounds) in Appendix A and B of 40 CFR part 355. The 12 solid EHS chemicals that are reactive solids are noted by footnote “a” in Appendix A and B of 40 CFR part 355, and are not affected by this final rule. Definitions of reactive and non-reactive solids, which were explained in the preamble of the proposed rule, have also been added to the regulations in 40 CFR 355.61 for greater clarity.

Solid EHSs (except reactive solids) have a TPQ of 10,000 pounds or a specified lower TPQ, for particular forms. For purposes of complying with the emergency planning notification requirements of section 302 of EPCRA, facilities should multiply the amount of EHS chemical handled as a non-reactive solid in solution on-site by 0.2 before determining if this amount equals or exceeds the established lower TPQ. If the amount of the non-reactive EHS solids in solution on-site multiplied by 0.2 does not equal or exceed the lower TPQ for that solid EHS, then the facility is not subject to the EPCRA section 302 emergency planning notification requirements for that substance. This amount includes only the weight of the chemical and not the solvent or other chemicals in solution. The amount of non-reactive EHS solids in solution may be determined by multiplying the weight percent of the EHS solids in solution in a particular container by the weight of the total solution. Solutions include aqueous or organic solutions, slurries, viscous solutions, suspensions, emulsions, and pastes.

Additionally, EPA has also revised the regulations for 40 CFR 355.16(c) to be applicable only to molten non-reactive solids. That is, the factor of 0.3 to be multiplied by the amount of a molten solid on-site before comparing to the lower TPQ should only be used for non-reactive solids in molten form, not reactive solids in molten form. Reactive solids are more likely to be dispersed into the air due to the energy or heat created from their reactivity with water or air and their TPQs were developed taking these factors into account.

Additionally, the methodology of applying TPQs for non-reactive EHS solids in solution or non-reactive molten solids does not affect the reporting requirements for sections 311 and 312 of EPCRA (40 CFR part 370). Regulations under 40 CFR 370.10 state that an EHS is present at a facility if the “amount of EHS present at any one time” is equal or greater than 500 pounds or the TPQ, whichever is lower. The reducing factor of 0.2 for non-reactive EHS solids in solution or (0.3 for non-reactive EHS molten solids) is not to be used for compliance with hazardous chemical reporting. Therefore, EPA has amended the text of 40 CFR 355.16 (b) and (c) to clarify that the reduction in quantity for the amount of non-reactive EHS solids in solution and for the amount of non-reactive EHS solid in molten form present at a facility does not apply for reporting requirements under 40 CFR 370.10, which covers MSDS and hazardous chemical inventory reporting. That is, facilities must not use the reduction in quantity on-site to determine the “amount present at one time” for reporting under 40 CFR 370.10.

The reason why the reducing factors are to be used for emergency planning notification under 40 CFR part 355 and not under hazardous chemical reporting under 40 CFR part 370 are explained below. Emergency planning notification under section 302 helps LEPCs identify those facilities whose accidental releases pose risks to the surrounding community so they can develop emergency plans that identify the location and number of affected populations, evacuation or shelter-in-place procedures, etc. On the other hand, sections 311 and 312 of EPCRA require submission of MSDSs and an on-site inventory of hazardous chemicals to help emergency responders assess how to respond to an emergency release or fire. In particular, responders need the amounts, manner of storage and locations of the chemical on-site, the chemical and physical properties, hazard ratings, toxicity information and incompatibilities of the chemical, as well as measures needed to contain the spill or fire at the facility in order to know how to respond to an emergency. In addition, they need to know what type of protective equipment is needed to protect them from exposure, not only airborne, but also dermal exposure.

Emergency release notification requirements under EPCRA section 304 also are not affected by this final action. Section 304 requires facilities to notify the community emergency coordinator for the LEPC of any area likely to be affected by the release and the SERC of any area likely to be affected by the release (defined in 40 CFR 355.61) at or above the reportable quantity (RQ) of any EHS or CERCLA hazardous substance. If the chemical released is a CERCLA hazardous substance, the release must also be reported to the National Response Center (NRC). The RQ is not the same as the TPQ. TPQs are based on acute mammalian toxicity and potential for airborne dispersion. RQs, on the other hand, are developed using several criteria, including aquatic toxicity, mammalian toxicity, ignitability, reactivity, chronic toxicity, potential carcinogenicity, biodegradation, hydrolysis, and photolysis (50 FR 13468, April 4, 1985).

Facilities with a non-reactive EHS solid in solution should apply the 0.2 factor only to the amount of EHS solid present, not the total weight of the solution. As an example, a facility has 4,000 pounds of a solution of 37% by weight paraquat dichloride on-site. Therefore, this solution contains 1,480 pounds of paraquat dichloride (0.37 × 4,000 pounds). The facility would multiply 1,480 pounds by 0.2, which equals 296 pounds. This amount is then compared to the TPQ for paraquat dichloride, which is 10 pounds. Because this amount exceeds the 10 pounds TPQ, the facility is required to comply with the emergency notification requirements of section 302 of EPCRA. As another example, a facility has 10 gallons (gal) of a solution of 37% by weight paraquat dichloride on-site. The density of the solution is 9.33 pounds per gallon. Therefore, this solution contains 34.5 pounds of paraquat dichloride (10 gal × 9.33 lb/gal × 0.37). The facility would multiply 34.5 pounds by 0.2, which equals 6.9 pounds. This amount is then compared to the TPQ for paraquat dichloride, which is 10 pounds. Because this amount is less than the 10 pounds TPQ, the facility is not required to comply with the emergency notification requirements of section 302 of EPCRA.

Facilities that handle both the powdered and solution forms of a particular non-reactive solid EHS will have to consider the quantities of each form and the particle size to determine whether they exceed a TPQ. Below are several examples of how to apply the revised TPQ methods in various cases. 4

Non-reactive solid in solution exceeds lower TPQ, powder below 10,000 pounds. A facility has on-site 5,000 pounds of a pure EHS powder with a particle size equal to or greater than 100 microns, which is less than the 10,000 pounds TPQ. However, they also have 1,000 gallons of a 35% by weight non-reactive EHS solid in solution with a density of 9 pounds per gallon. The amount of solids in solution on-site is 3,150 pounds (1000 gallons × 9 pounds per gallon × 0.35). Multiplying the 3,150 pounds of solid in solution by 0.2 equates to 630 pounds, which exceeds the lower TPQ of 500 pounds. Thus, the facility must report under section 302 of EPCRA based on exceeding the lower TPQ for the non-reactive solid in solution form.

Non-reactive solid in solution below lower TPQ, powder exceeds 10,000 pounds. A facility has on-site 11,000 pounds of a pure EHS solid powder with a particle size equal to or greater than 100 microns, which is more than the 10,000 pounds TPQ. They also have 2,000 gallons of a 10% by weight non-reactive EHS solid in solution with a density of 9 pounds per gallon. The amount of solids in solution on-site is 1,800 pounds (2,000 gallons × 9 pounds per gallon × 0.10). Multiplying the 1,800 pounds of solid in solution by 0.2 equates to 360 pounds, which is less than the lower TPQ of 500 pounds. Thus, the facility must report under section 302 of EPCRA based on exceeding the 10,000 pounds TPQ for the solid in powder form.

Non-reactive solid in solution below lower TPQ, powder below 10,000 pounds. A facility has 5,000 pounds of a pure EHS solid powder with a particle size equal or greater than 100 microns, which is less than the 10,000 pounds TPQ. They also have 1,500 gallons of a 15% by weight non-reactive EHS solid in solution with a density of 9 pounds per gallon. The amount of solids in solution on-site is 2,025 pounds (1.500 gallons × 9 pounds per gallon × 0.15). Multiplying the 2,025 pounds of solid in solution by 0.2 equates to 405 pounds, which is less than the lower TPQ of 500 pounds. Thus, the facility is not required to report under section 302 of EPCRA because it does not exceed the lower 500 pounds TPQ for the non-reactive solids in solution form or the 10,000 pounds TPQ for the powder with a particle size greater than 100 microns.

Powdered product less than 100 microns, processed into solution. If the same amount of solid EHS powder were involved as the same scenarios above, except the powder has a particle size less than 100 microns, then the lower 500 pounds TPQ would apply to the powder instead of 10,000 pounds. If either the amount of powder or non-reactive solids in solution exceeds the lower TPQ, the facility would be required to report under section 302 of EPCRA.

EPA received comments from three organizations. The number of commenters in each group is as follows: Industry, 1 comment; and LEPCs, SERCs (or TERCs) and Emergency Management Agencies (EMAs), 2 comments. A complete summary of all comments and EPA's response to them is presented in “Response to Comments for Emergency Planning and Community Right-to-Know Act; Emergency Planning and List of Extremely Hazardous Substances and Threshold Planning Quantities,” which is available in the docket. The major issues and the Agency's responses to them are described below.

Comment: One commenter believed that the proposed method better reflects the ability of a solid substance becoming airborne. They also support not changing the EPCRA section 304 reportable quantities for EHSs.

EPA's Response: We agree with the commenter, as it relates to non-reactive solids in solution. However, EPA emphasizes that the changes proposed (and finalized today) apply only to non-reactive EHS solids in solution, not other solid forms, such as powdered solids. EHSs that are powdered solids with a particle size of less than 100 microns diameter are considered to be as dispersable in air as a gas and are subject to the lower listed TPQ in Appendix A or B of 40 CFR part 355. On the other hand, EHSs that are powdered solids with a particle size equaling or exceeding 100 microns in diameter are subject to the higher TPQ of 10,000 pounds.

Comment: Another commenter supported the proposed method because they believe the changes can benefit SERCs and LEPCs to allow them to better focus their limited resources on those amounts of EHSs that will potentially cause the greatest harm. The commenter also thought the proposal was consistent with Executive Order 13563, which promotes that “analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned” (76 FR 3822, January 21, 2011).

EPA's Response: We agree with the commenter that the revised methodology better aligns the regulatory requirements with the best available science. That is, the additional experimental data on aerosol releases refines the applicability and development of TPQs for non-reactive EHS solids in solution because it provides a sounder scientific basis for assigning TPQs, and thereby, more accurately identifies the forms of solid chemicals that would pose the greatest risks if accidently released. We also agree with the commenter that the EHSs list and assigned TPQs are intended to help communities focus on the substances and facilities of most immediate concern for emergency planning and response.

With respect to E.O. 13563: Improving Regulation and Regulatory Review, EPA did not address the application of this Executive Order in the proposed rule because OMB review of this action had just been completed before the Executive Order was issued in January 2011. However, the Agency did include the revisions for the application of TPQs for EHS non-reactive solids in solution in its report to OMB, “Final Plan for Periodic Retrospective Reviews of Existing Regulations” (the Plan) in response to President Obama's charge in Executive Order 13563 for each federal agency to develop a plan for reviewing existing regulations. EO 13563 requires the agency to “periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”

Comment: The commenter notes that the proposed rule states that a facility determines the quantity of EHSs “present” for solids in solution by multiplying the weight percent of non-reactive solids in solution in a particular container by the total weight of solution in the container, multiplied by 0.2. Under 40 CFR 370.30, a facility must submit an MSDS for each hazardous chemical “present” at the facility that meets or exceeds the applicable threshold level. Under the new proposal, it appears the facility may report on the calculated amount under the proposed regulation, thus changing the Tier II threshold without any discussion or analysis. The commenter strongly urges that the language of the proposed regulation address this ambiguity directly and clarify its relationship to EPCRA section 312. The commenter suggests the following language be added to the proposal in 40 CFR 355.16(b): This reduction in quantity does not apply to determining the threshold for reporting under 40 CFR 370.10.

EPA's Response: EPA agrees with the commenter that application of TPQs for emergency planning and for hazardous chemical reporting should be clarified in the regulations to make it clear that the reducing factor is not used for compliance with the hazardous chemical reporting requirements under 40 CFR 370.10. (See Section II.A of the preamble to today's final rule for further discussion on this point.) However, rather than say the reduction in quantity does not apply in determining the TPQ (“the threshold” as stated by commenter), EPA has amended 40 CFR 355.16(b) by stating that this reduction in quantity must not be used to determine the amount present at one-time at a facility for reporting under 40 CFR 370.10. That is, EPA sets the TPQs, but facilities must determine the amount present to compare to the threshold.

EHS solids in molten form also have a reducing factor (0.3) applied to the amount on-site before comparing with the TPQ. Therefore, EPA has revised the regulation in 40 CFR 355.16(c) to also clarify that this reducing factor must not be used to determine the amount present at one-time at a facility for reporting under 40 CFR 370.10, which covers hazardous chemical reporting. EPA has also revised 40 CFR 355.16(c) to limit the application of the 0.3 reducing factor to be used only for non-reactive solids in molten form, not for reactive solids in molten form. Definitions of reactive and non-reactive solids, while explained in the preamble of the proposed rule, have also been be added to the regulations in 40 CFR 355.61 for greater clarity.

Comment: One commenter was concerned with the effect that the proposed rule will have on a community's ability to know if a hazardous substance is present and prepare for a possible emergency. The proposed regulation only considers a release scenario where a non-reactive EHS solid in solution form is released via an airborne release. However, LEPCs and Fire Departments have to look at all possible scenarios, including a possible fire or spill to water. If there is any type of emergency, the Fire Department will have to react to the total quantity on hand. While there is a great deal of information in the administrative record regarding the behavior of airborne releases of the subject materials, none of that information suggests that these materials are harmless in other accident scenarios.

EPA's Response: EPA recognizes that the manner in which the TPQs for non-reactive EHS solids in solution are being applied does not address all environmental media that could be affected by an accident release and EPA agrees that materials released via other accident scenarios are not harmless. However, the development of TPQs for emergency planning purposes under section 302 of EPCRA addresses the air release scenario because EPA believes an air release is most likely to involve potential exposures to the surrounding community. This air release scenario was used to develop TPQs for all EHSs whether they were gases, liquids, or solids. EPA is only modifying the approach for non-reactive EHS solids in solution to reflect the scientific information now available, which shows that an assumption of 100% dispersion into the air beyond a facility's fence line affecting the surrounding community is overly conservative.

The TPQs are designed to help State and local officials identify those sites where there is a greater potential for harm to the surrounding community if a release were to occur, thereby focusing resources on priority emergency planning problems (51 FR 41577, November 17, 1986.) The approach used for setting TPQs under section 302 of EPCRA ranks chemicals based on ambient physical state, form and the extent to which the material can become airborne and dispersed. This approach provides a relative measure of concern rather than absolute values and EPA acknowledged when developing the TPQs that there is no precision associated with the numbers and they should not be construed as “safe” (51 FR 41577, November 17, 1986). When the TPQs were initially developed, EPA considered an approach based on ranking the chemicals on toxicity alone without considering the potential for them to become airborne, but this approach was rejected because it might distort local planning priorities (see 51 FR 41577, November 17, 1986 for further discussion on this point). The Agency believes that limited state and local resources should be focused on those substances that potentially cause the greatest harm should an accidental release occur (52 FR 13390, April 22, 1987).

Nevertheless, EPA recognizes that Fire departments will need to react to the entire quantity on-site. Therefore, the reduction of the amount on-site of a non-reactive EHS solid in solution is only allowed for emergency planning purposes under section 302 of EPCRA and is not to be used for reporting under sections 311 and 312 of EPCRA. Accordingly, fire departments will have all the same information as before for planning and responding to an accidental release. LEPCs also have access to the same information for planning purposes.

Comment: One commenter was concerned that the proposed change is a unique approach to evaluating EHS chemicals and is foreign to LEPCs, fire departments and SERCs. For other EHSs, it is not necessary to carry around a calculator to evaluate whether the visually obvious quantity being stored is actually in excess of the TPQ. For all other EHS chemicals, looking at the MSDS and knowing the quantity on hand suffices.

EPA's Response: The approach being finalized today, which revises the manner for applying TPQs for non-reactive EHS solids in solution is not “unique”; rather, EPA has already used a similar approach for determining the manner for applying TPQs for molten solids (except that the amount on-site is multiplied by 0.3). When proposing such an approach for molten solids, the Agency received no feedback from LEPCs, fire departments or SERCs (or TERCs) that applying this approach is problematic. In addition, we would note that quantities of EHSs that are stored as mixtures (such as solutions) already require some calculation of the total quantity of mixture multiplied by the concentration to determine the pounds of pure EHS (see 40 CFR 355.13). Adding up various containers and sources of the stored EHSs within a facility requires calculation and is already required (see 40 CFR 355.14). Some calculations for emergency planning should be expected and EPA does not believe a further calculation for comparison to a TPQ is unnecessarily burdensome. In addition, as noted elsewhere in this preamble, the Hazardous Chemical Inventory reports provide the total quantities and locations for use by emergency planning and response groups, and thus, we believe the information that LEPCs and Fire Departments need will still be available to them for emergency planning purposes.

Comment: One commenter was concerned about the burden being balanced in this situation: a one-time notice versus the annual or even more frequent effort by the LEPC and fire department to evaluate risks present in the community. The commenter believes that a release of these chemicals is hazardous and undoing 25 years of information collection and emergency planning just so a one-time notice can be avoided, seems absurd.

EPA's Response: EPA believes that because most facilities have (or should have) already reported the presence of EHSs exceeding relevant TPQs to their LEPCs, it is not apparent how this change in requirements will require more frequent effort by LEPCs and fire departments to evaluate risks. The data already collected by LEPCs, fire departments and SERCs (or TERCs) is still available and reporting on hazardous chemicals “aids in the development of state and local emergency plans” (40 CFR 370.1). If an LEPC believes that unreasonable risks are still posed for an EHS present at a facility, section 302(b)(2) of EPCRA allows a Governor or SERC to designate additional facilities after public notice and comment to be subject to the emergency planning and notification requirements of section 302 of EPCRA. In addition, facilities are still subject to emergency planning notification if they handle other EHSs that exceed their TPQs.

We would also note that EPA did not make this change in reporting just so a one-time notice could be avoided. The issue was initially addressed due to a lawsuit that challenged, among other things, that EPA did not adequately explain the basis for setting the TPQs for non-reactive EHS solids in solution and did not adequately explain why it thought that such solids in solution could be expected to be completely dispersed into the air, as compared to gases or powdered solids. EPA now believes, based on the studies cited in its technical analysis, that the previous assumption that a release of a non-reactive EHS solid in solution would be as readily dispersed to air as a gaseous EHS, for example, was overly conservative and without a good basis.

Finally, for all practical purposes, changing the notification requirement affects only those facilities who have not yet reported a non-reactive EHS solid in solution. Thus, EPA believes that this change will allow those planning agencies with limited resources to better focus their efforts on those forms of EHSs that are more likely to cause the greatest harm. EPA also acknowledges that non-reactive EHS solids in solution can be hazardous, but notes that the requirements of EPCRA section 302 do not apply to all hazardous chemicals, only a subset, such as the limited listing of EHS.

Comment: One commenter noted that EPA suggested in the proposed rule that Tier II reports will still provide adequate information to LEPCs and fire departments. The commenter stated that the authority of EPCRA section 303(d)(3) does not apply to Tier II reports, which will immediately deprive LEPCs of perhaps their greatest asset in emergency planning.

EPA's Response: EPA agrees that the authority of EPCRA section 303(d)(3) [42 U.S.C. 11003(d)(3)] does not apply to Tier II reports. Section 303(d)(3) requires that for each facility subject to the requirements of Subchapter I—Emergency Planning and Notification, the owner or operator of the facility shall promptly provide information to such committee necessary for developing and implementing the emergency plan, upon request from the emergency planning committee. Tier II Inventory reporting requirements are covered under Subchapter II—Reporting Requirements of EPCRA [42 U.S.C. 11021-11023].

EPA believes that less priority can be given for these forms of chemicals—that is, a non-reactive EHS solid in solution, based on the data that indicates they are not expected to be as dispersed into the air in the event of an accident. Other EHSs (such as gases and volatile liquids) are in a physical state and form more likely to cause potential risks to off-site communities when released. Facilities are still covered under section 302 of EPCRA if they have other EHSs that exceed the TPQs and thus, may still be required to provide some information relevant for emergency planning. Also, for purposes of emergency planning, section 302(b)(2) of EPCRA does allow a governor or a SERC to designate additional facilities to be subject to emergency planning and notification requirements, if such designation is made after public notice and opportunity for comment.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

This action does not impose any new information collection burden. Rather, this final rule raises the amount of chemical on-site required before triggering emergency planning reporting under 40 CFR part 355 for non-reactive EHS solids in solution. Facilities with this form of EHS chemical would have already (or should have already) reported their presence to their SERC (or TERC) and LEPC and identified a Facility Emergency Coordinator and necessary information for development of a local emergency plan to their LEPC. If, as a result of this rulemaking, facilities find that they have a non-reactive EHS solid in solution on-site which no longer equals or exceeds the TPQ, the facility should notify their LEPC. Section 303(d)(2) of EPCRA requires facilities to promptly provide to their LEPC any changes relevant to emergency planning. Regulations at 40 CFR 355.20 clarify that relevant changes to emergency planning should be reported within 30 days. EPA expects that this notification will be a minimal burden. The emergency planning notification requirement is not required annually. There may be a slight burden reduction for facilities that are reporting non-reactive EHS solids in solution for the first time under the EPCRA section 302 requirements.

The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations at 40 CFR part 355 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2050-0092, EPA ICR number 1395.07. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's final rule on small entities, a small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This final rule changes the manner by which facilities apply the TPQs for those non-reactive EHSs that are solid chemicals in solution form. Specifically, facilities with a non-reactive EHS solid in solution would be subject to the Emergency Planning requirements of 40 CFR part 355, subpart B—Emergency Planning only if the amount of non-reactive EHS solids in solution on-site, multiplied by 0.2 equals or exceeds the lower published TPQ. We have therefore concluded that today's final rule will relieve regulatory burden for some affected small entities and will have no economic impact on the rest of the affected small entities.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1532-1538 for state, local, or tribal governments or the private sector. This action does not impose any new requirements on state, local or tribal governments. Facilities currently with non-reactive EHS solids in solution on-site have already (or should have already) reported these chemicals to their SERC (or TERC) and LEPC and identified a Facility Emergency Coordinator and the necessary information for developing an emergency plan to their LEPC. We expect that this action will neither increase nor decrease the requirements for SERCs (or TERCs) or LEPCs. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This action does not impose any new requirements on state, local or tribal governments.

This action 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.

This action reduces the reporting burden on any facilities that would have a non-reactive EHS solid in solution on-site for the first time and could be subject to the emergency planning requirements for that chemical under 40 CFR part 355, subpart B—Emergency Planning. We also expect that this action will neither increase nor decrease the requirements for SERCs (or TERCs) or LEPCs. This rule does not impose any requirements on state or local governments. Thus, Executive Order 13132 does not apply to this action.

This action does not have tribal implications, as specified in Executive Order 13175, (65 FR 67249, November 9, 2000). This action reduces reporting burden on any facilities that would have a non-reactive EHS solid in solution on-site for the first time and could be subject to the emergency planning requirements for that chemical under 40 CFR part 355, subpart B—Emergency Planning. This action also does not impose any new requirements on tribal governments. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866 and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action reduces the reporting burden on any facilities that would have a non-reactive EHS solid in solution on-site for the first time and could be subject to the emergency planning requirements for that chemical under 40 CFR part 355, subpart B—Emergency Planning.

This action is not a “significant energy action,” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. Rather, this final rule would reduce reporting burden on any facilities that would have a non-reactive EHS solid in solution on-site for the first time and could be subject to the emergency planning requirements for that chemical under 40 CFR part 355, subpart B—Emergency Planning.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or would otherwise be impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations of when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Executive Order (EO) 12898 (59 FR 7629 (February 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 has determined that this final rule does not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. That is, based on new information and data, the Agency believes that the amount of non-reactive EHS solids in solution that would remain airborne from an accidental release into the environment will be lower than previously considered, and thus, would have less impact on the local community. This in turn will allow SERCs (or TERCs) and LEPCs to better focus their attention and limited resources on the amounts of EHS chemicals that can potentially cause the greatest harm, including those affecting minority or low-income populations, and to spend less time and fewer resources on those that pose less harm, when released.

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 April 23, 2012.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:

This is a summary of the Commission's Fifth Report and Order ( Fifth Report and Order ) in EB Docket No. 04-296, FCC 12-7, adopted on January 9, 2012, and released on January 10, 2012. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov .

1. In the Fifth Report and Order, the Commission adopts several changes to its Part 11 Emergency Alert System (EAS) rules to more fully codify the Common Alerting Protocol (CAP)-related obligations initially adopted in the Second Report and Order ( Second Report and Order ) in EB Docket No. 04-296, 72 FR 62123 (Nov. 2, 2007), and to eliminate outdated rules to improve Part 11's overall effectiveness. The rule amendments and other decisions taken in this Fifth Report and Order are predicated upon the Third Further Notice of Proposed Rulemaking ( Third FNPRM ) in EB Docket No. 04-296, 76 FR 35810 (June 20, 2011), adopted by the Commission on May 25, 2011.

2. The present-day EAS is a hierarchical alert message distribution system that utilizes radio and television broadcasters, cable service providers, and other regulated entities (collectively known as EAS Participants) to transmit audio and/or visual emergency alert messages to the public. To initiate an EAS message, whether at the national, state, or local levels, the message originator must format a message in the EAS Protocol, which is identical to the Specific Area Message Encoding (SAME) digital protocol utilized by National Weather Service (NWS) (hereinafter, “EAS Protocol” and “SAME” are used interchangeably), and send the formatted alert to a designated entry point within the EAS network for delivery to specialized equipment maintained and operated by EAS Participants that can receive (and decode) the alert for transmission over the EAS Participants' facilities to their end users.

3. In 2007, the Commission adopted the Second Report and Order in this docket, which revised the Commission's Part 11 EAS rules to lay the foundation for a state-of-the-art, next-generation national EAS (Next Generation EAS). First, to ensure the efficient, rapid, and secure transmission of EAS alerts in a variety of formats (including text, audio, and video) and via different means (broadcast, cable, satellite, and other networks), the Commission required that EAS Participants be capable of receiving CAP-formatted alert messages no later than 180 days after the Federal Emergency Management Agency (FEMA) publicly publishes its adoption of the CAP standard. Second, the Commission required EAS Participants to adopt Next Generation EAS delivery systems no later than 180 days after FEMA publicly releases standards for those systems. Third, the Commission required EAS Participants to transmit state and local EAS alerts that are originated by governors or their designees no later than 180 days after FEMA publishes its adoption of the CAP standard, provided that the state has a Commission-approved State Area EAS Plan that provides for delivery of such alerts.

4. CAP is an open, interoperable XML-based standard, developed within the Organization for the Advancement of Structured Information Standards (OASIS) standards process, which permits links to voice, audio or data files, images, multilingual translations of alerts, and links providing further information. Although CAP and SAME both convey data, the two protocols function in entirely different ways. CAP essentially represents an envelope into which data is packaged according to predetermined fields and packetized for transmission over various IP-based mediums, such as the Internet. The SAME protocol is designed to combine specific codes that identify alert data (e.g., type, origin, and area affected) with an audio message, which are modulated onto an RF signal using the audio frequency-shift keying (AFSK) modulation scheme (this process is referred to as “encoding”).

5. On March 25, 2010, in anticipation of FEMA's adoption of CAP, the Commission's Public Safety and Homeland Security Bureau (Bureau) released a Public Notice ( Part 11 Public Notice ) in EB Docket No. 04-296, DA 10-500, released on March 25, 2010, that sought informal comment regarding what, if any, Part 11 changes might be necessitated by the introduction of CAP. On October 7, 2010, the Communications Security, Reliability, and Interoperability Council (CSRIC), which had been established by the Commission to, among other things, recommend revisions to the Part 11 rules in light of FEMA's then-pending adoption of CAP, adopted a Final Report, which included a number of recommendations for revisions to the Part 11 rules related to the obligation to accept CAP-formatted messages.

6. On September 30, 2010, FEMA announced its adoption of technical standards and requirements for CAP-formatted EAS alerts. Specifically, FEMA identified three documents as defining the FEMA Integrated Public Alert and Warning System (IPAWS) technical standards and requirements for CAP and its implementation: (1) The OASIS CAP Standard v1.2; (2) an IPAWS Specification to the CAP Standard (CAP v1.2 IPAWS USA Profile v1.0); and (3) the EAS-CAP Industry Group's (ECIG) Recommendations for a CAP-EAS Implementation Guide, Version 1.0 (May 17, 2010) (ECIG Implementation Guide). FEMA's announced adoption of CAP v1.2 triggered an initial deadline for EAS Participants to be able to receive CAP alerts by March 29, 2011.

7. On November 18, 2010, in response to the recommendations in CSRIC's Final Report, as well as to comments submitted in response to the Part 11 Public Notice, the Commission adopted an order in EB Docket No. 04-296, FCC 01-191, that extended the 180-day deadline for meeting the CAP-related obligations until September 30, 2011 (the Waiver Order ). On May 25, 2011, the Commission adopted the Third FNPRM, which sought comment on several proposed changes to the EAS rules to more fully codify the CAP-related obligations adopted in the Second Report and Order, and to eliminate outdated rules to improve Part 11's overall effectiveness, and is the basis for the decisions taken in the Fifth Report and Order. On September 15, 2011, the Commission adopted the Fourth Report and Order ( Fourth Report and Order ) in EB Docket No. 04-296, 76 FR 80780 (Dec. 27, 2011), which amended section 11.56 of the EAS rules to require EAS Participants to be able to receive CAP-formatted EAS alerts no later than June 30, 2012.

8. The Fifth Report and Order adopts changes to the Part 11 rules to fully effectuate the CAP-related obligations adopted in the Second Report and Order, as well as other rule changes and clarifications intended to streamline Part 11 and generally enhance the overall effectiveness of the EAS, based upon the rule changes and clarifications proposed in the Third FNPRM . The specific rule changes adopted in the Fifth Report and Order are included in the rules section.

9. The rule changes and other decisions taken in the Fifth Report and Order in response to the Third FNPRM are summarized below. Because the Fifth Report and Order does not impose new obligations but primarily details the manner in which EAS Participants must implement the CAP requirement, the rules and other decisions adopted in the Fifth Report and Order impose minimal new costs, particularly as many EAS Participants have already purchased and installed CAP-compatible EAS equipment. In many cases, these rule changes will result in decreased costs.

10. The Commission adopts the transitional approach for implementing CAP within the EAS set forth in the Third FNPRM . Specifically, the Commission explains that the CAP-related changes to Part 11 it adopts in the Fifth Report and Order are limited to ensuring that EAS Participants' EAS equipment will be capable of receiving and converting CAP-formatted messages into a SAME-compliant message. The Commission clarifies that EAS Participant stations that are generally charged with encoding (or regenerating) the EAS Protocol codes (as AFSK tones) for the benefit of downstream stations monitoring their transmissions will continue that function with respect to alert messages they receive in the CAP format—just as they would for alert messages they receive in the SAME format. However, the Commission explains, they will be generating the AFSK tones based upon the relevant EAS Protocol codes contained within the CAP message, in conformance with the ECIG Implementation Guide, including the audio message contained in the CAP message, to the extent required under the Part 11 rules. As part of this transitional approach, the Commission also requires EAS Participants to create video crawls based upon the enhanced text contained within the CAP message to the extent that such text files are provided by the alert initiator, in conformance with the relevant procedures set forth in the ECIG Implementation Guide.

11. The Commission concludes that this transitional approach is warranted, primarily because switching over to a fully CAP-centric EAS system—where EAS messages are inputted and outputted in CAP format rather than SAME format—at this time is technically infeasible and premature, because no such CAP-centric system has been developed. The Commission further concludes that this transitional approach makes sense because the many benefits of maintaining the legacy EAS previously outlined by the Commission in the Second Report and Order continue to be relevant today. In addition, the Commission observes that FEMA has indicated that the legacy EAS will continue to provide a nationwide alerting mechanism as part of its IPAWS system, and FEMA's adoption of the standards necessary for formatting alert messages into CAP and translating such CAP-formatted messages into SAME-compliant messages establishes the groundwork for implementing CAP-formatted alert initiation within the existing EAS system. The Commission further observes that the record indicates that EAS equipment manufacturers have designed and have been marketing CAP-enabled equipment that conforms to these FEMA-adopted standards, and a significant percentage of EAS Participants already have procured or contracted for such equipment, making this transitional approach both practical and cost-efficient.

12. CAP-Formatted Message Conversion to SAME . The Commission adopts its tentative conclusion in the Third FNPRM to amend § 11.56 to require EAS Participants to convert CAP-formatted EAS messages into SAME-compliant EAS messages in accordance with the ECIG Implementation Guide, except for its provisions on text-to-speech and gubernatorial CAP messages. The Commission observes that adopting the ECIG Implementation Guide as the standard for translating CAP-formatted messages into SAME-compliant messages will harmonize CAP elements with the Part 11 rules, thus ensuring that CAP-formatted EAS messages are converted into SAME-compliant messages in a consistent, cost-efficient manner across devices and delivery platforms. The Commission also observes that adoption of this requirement has broad support in the record.

13. The Commission notes that FEMA has adopted the ECIG Implementation Guide as its benchmark for processing IPAWS-distributed CAP-formatted messages to the EAS, and many manufacturers have already designed EAS equipment that conforms to the ECIG Implementation Guide, as demonstrated by their having completing requirements of FEMA's IPAWS Conformity Assessment Program. The Commission also observes that successful completion of FEMA's IPAWS Conformity Assessment Program can be used to demonstrate ECIG Implementation Guide compliance for purposes of obtaining FCC certification. Accordingly, the Commission finds that the costs of complying with the ECIG Implementation Guide are minimal.

14. The Commission clarifies that it will not permit EAS Participants to adhere to the ECIG Implementation Guide's provisions on text-to-speech. The Commission finds that, although use of text-to-speech technology has some support in the record, there are also concerns in the record about whether text-to-speech software is sufficiently accurate and reliable to deliver consistently accurate and timely alerts to the public. The Commission also observes that allowing the text-to-speech conversion to be resolved by EAS equipment software, as opposed to text-to-speech software that the alert message originator might employ, could result in differing audio messages being broadcast for the same EAS message, depending upon which software brand and version a given equipment manufacturer elected to incorporate into its EAS equipment. The Commission concludes that discussion of text-to-speech and speech-to-text software is best reserved for a separate proceeding, and therefore defers these issues at this time. Finally, the Commission notes that because it is eliminating the mandate to process CAP-formatted messages initiated by state governors, the issue of conformance with the provisions in the ECIG Implementation Guide to effect that mandate are moot.

15. CAP-Related Monitoring Requirements . The Commission amends § 11.52 of its rules to include a requirement that EAS Participants' EAS equipment must interface with and monitor (whether through “pull” interface technologies, such as Really Simple Syndication (RSS) and Atom Syndication Format (ATOM), or “push” interface technologies, such as instant messaging and email) the IPAWS system to enable distribution of Federal CAP-formatted alert messages from IPAWS to the EAS Participants' EAS equipment. Whereas the Commission had initially proposed in the Third FNPRM to require that EAS Participants monitor FEMA's IPAWS RSS feed(s) for Federal CAP-formatted messages, it concludes that it is unrealistic to require that EAS Participants adhere to a specific technical standard for CAP monitoring. The Commission also observes that the technical parameters of the IPAWS system are still evolving—and the digital world in which that system operates is evolving faster still. The Commission finds that trying to keep up with these changes while specifying the technical requirements for Federal CAP monitoring in the Part 11 rules is neither practical nor administratively efficient. In this regard, the Commission observes that FEMA changed the methodology for distributing CAP messages from its IPAWS system to the EAS from RSS to ATOM shortly after the Third FNPRM's adoption. The Commission also finds that the flexible approach to monitoring adopted in the Fifth Report and Order will benefit equipment manufacturers by allowing them to update their equipment designs as Federal CAP message delivery mechanisms and technology evolve.

16. Because the Commission in the Fifth Report and Order eliminates the obligation to receive and process gubernatorial CAP-formatted messages, it does not establish a generally applicable requirement for state CAP message monitoring. The Commission clarifies that the monitoring requirements associated with CAP messages initiated via state (and local) EAS systems will be determined just as the monitoring requirements for SAME-based EAS message transmissions always have been. Specifically, the Commission indicates that state (and local) alerting authorities, working with EAS Participants, will develop state (and local) CAP alert monitoring requirements and set these forth in their State EAS Plans, to be submitted to and approved by the Commission.

17. Next Generation Distribution Systems . In the Second Report and Order, the Commission stated that “should FEMA announce technical standards for any Next Generation EAS alert delivery system, EAS Participants must configure their networks to receive CAP-formatted alerts delivered pursuant to such delivery system, whether wireline, Internet, satellite or other, within 180 days after the date that FEMA announces the technical standards for such Next Generation EAS alert delivery.” In the Third FNPRM, the Commission interpreted this language as being intended to put EAS Participants on notice that, should FEMA adopt technical standards covering delivery of CAP-formatted messages to EAS Participants over specific platforms, such as satellite systems, EAS Participants would ultimately need to configure their systems to be able to interface with such systems to meet their existing obligation to process CAP-formatted messages.

18. In the Fifth Report and Order, the Commission adopts the interpretation of the language from the Second Report and Order regarding receipt of CAP-formatted messages from Next Generation EAS delivery systems that it stated in the Third FNPRM . Accordingly, the Commission concludes that if FEMA were to announce technical standards for any Next Generation EAS alert delivery system for delivering CAP-formatted alerts, the Commission would seek to amend Part 11 to require that EAS Participants be capable of receiving such alerts. The Commission observes that it has no expectations as to how or whether FEMA may adopt standards and requirements for new message and delivery mechanisms that would modify existing requirements. The Commission instead merely clarifies that: (i) Any such standards or requirements cannot be enforced with respect to EAS Participants until the requirements are formally integrated into the Part 11 rules via the rulemaking process, and (ii) it would seek to initiate such a rulemaking process in a timely manner, with the goal of making compliance with such standards or requirements effective within 180 days of their formal adoption.

19. Equipment Requirements . The Fifth Report and Order contains several CAP-related decisions related to EAS equipment, as summarized below.

20. Intermediary Devices . The Commission explains that intermediary devices are stand-alone devices that carry out the functions of monitoring for, receiving, and decoding CAP-formatted messages and converting such messages into a format that can be inputted into a separate, stand-alone legacy EAS device to produce an output that complies with the Part 11 rules. The Commission observes that the record indicates that there are two types of intermediary devices, which may generally be described as “universal” intermediary devices and “component” intermediary devices. The Commission explains that universal intermediary devices monitor, acquire, and decode CAP messages, using the relevant CAP data to generate (i.e., encode) the EAS codes (FSK audio tones) and, if present, an audio message, which can be inputted into legacy EAS devices. The Commission further explains that because the SAME-formatted message output of the universal intermediary device is functionally equivalent to a SAME-formatted message delivered over the air, it theoretically should be interoperable with all or most legacy EAS decoders. The Commission adds, however, that because the output of the universal intermediary device is limited to the EAS Protocol—which is all that the legacy EAS device can process—the configuration of a universal intermediary device and legacy EAS device can only generate a SAME-compliant message; it cannot, for example, use the enhanced CAP text for generating a visual display.

21. The Commission explains that component intermediary devices, by contrast, are designed to interoperate with specific legacy EAS device models. The Commission observes that component intermediary devices also monitor for, acquire, and decode CAP messages, but are designed to enhance the function of specific legacy EAS devices. As a result, the Commission explains, the output of the combined system configuration of these devices is capable of more than simply generating a SAME-compliant message. The Commission observes that the record indicates that such configurations may permit the use of the enhanced CAP text to meet the visual display requirements in §§ 11.51(d), (g)(3), (h)(3), and (j)(2).

22. The Commission observes that, according to the record, “integrated CAP-capable EAS devices”— i.e., self-contained, stand-alone devices that combine the CAP-related functions of decoding CAP-formatted messages and converting such messages into a SAME-compliant output and processing SAME-formatted messages as encoders and decoders in accordance with the Part 11 rules—can be updated via software or firmware to comply with any future changes that might be incorporated into the Part 11 rules, the CAP standard, or the ECIG Implementation Guide. The Commission also observes, however, that it is unclear whether or to what extent a combined system configuration of a component intermediary device and its companion legacy EAS device model could be similarly updated.

23. Based on the record and the transitional approach it adopts for this proceeding, the Commission concludes that it will allow EAS Participants to meet the CAP-related obligations adopted in the Fifth Report and Order by using intermediary devices in tandem with their existing legacy EAS equipment, provided that such configuration can comply with the revised certification requirements adopted in the Fifth Report and Order as well as with any applicable Part 11 requirements we may adopt in the future. The Commission further concludes, however, that because it is requiring that EAS Participants utilize the enhanced text in a CAP message to provide a visual display, as set forth in § 3.6 of the ECIG Implementation Guide, it will require that any intermediary devices provide such functionality by June 30, 2015, which is three years from the June 30, 2012, deadline for overall CAP compliance.

24. The Commission finds that this approach for intermediary devices is consistent with its baseline goal of ensuring that alert messages formatted pursuant to the CAP-related standards adopted by FEMA will be converted into and outputted as SAME-compliant messages. The Commission observes that the record indicates that intermediary devices offer a less costly way to meet the requirements adopted in the Fifth Report and Order, and that some percentage of EAS Participants already have purchased and deployed intermediary devices. The Commission observes that not authorizing the use of intermediary devices would result in significant equipment replacement, installation, and training costs for these EAS Participants. The Commission finds that, assuming these intermediary devices can meet the certification and other requirements adopted in the Fifth Report and Order, imposition of the costs associated with the purchase of replacement EAS equipment is unnecessary and unjustified. The Commission also observes that intermediary devices will be required to meet the same requirements and provide the same capabilities as integrated CAP-capable EAS devices, thus putting them on an equal footing.

25. With respect to its decision to require intermediary devices to be capable of utilizing the enhanced text in a CAP message to provide a visual display, as set forth in § 3.6 of the ECIG Implementation Guide, by June 30, 2012, the Commission recognizes that it will likely be technically unfeasible for universal intermediary devices (and possibly some component intermediary devices), as well as the legacy EAS devices with which they are configured, to meet this requirement. The Commission acknowledges that, as a result, non-conforming equipment would have to be replaced, but concludes that any costs associated with such replacement are consistent with those that EAS Participants may expect in the normal course of business, particularly as much of the underlying legacy equipment upon which intermediate devices depend is old and will soon need to be replaced. The Commission finds that the approximately three and one half-year window it is providing for intermediary device users is sufficient to allow EAS Participants to finish depreciating and then replace this aging legacy EAS equipment and to allow equipment manufacturers time to develop possible workarounds to allow intermediate devices to become compliant with the revised rules. The Commission also observes that among the benefits that CAP-compliant equipment will bring is an EAS that is more accessible to all Americans, including Americans with disabilities, who will directly benefit from this new requirement.

26. Section 11.32(a) . The Commission concludes that it is unnecessary to make any changes to the minimum encoder requirements set forth in § 11.32(a) regarding CAP-to-SAME conversion. The Commission observes that the conversion of CAP-to-SAME is primarily a decoding function that CAP-compliant EAS equipment is designed to perform. The Commission further observes that it is not requiring encoders to encode anything other than the relevant EAS Protocol elements described in § .31 that they have always been required to encode, and that this is the case regardless of whether the relevant EAS Protocol elements are derived from a CAP-formatted message or a SAME-formatted message.

27. Section 11.32(a)(2) and (a)(3) . The Commission revises the encoder input port configuration requirements in § 11.32(a)(2) to require that encoders be configured with at least one audio input port and at least one data input port. The Commission also deletes as unnecessary references to RS232-C and 1200 baud rate, which manufacturers may continue to make available, if they so desire. The Commission concludes that decisions concerning the total number and types of data input ports configured into encoders are best left to equipment manufacturers, so that they can respond to the monitoring requirements of the CAP systems with which EAS equipment may interface (such as IPAWS and state CAP systems), changes in technology, and costs of compliance. The Commission also finds that, for the sake of consistency with its transitional approach, the input configuration requirements should continue to require audio and data connectivity. Finally, the Commission applies the minimal requirement of at least one audio port and at least one data port to the encoder output port configuration requirements in § 11.32(a)(3), because it finds that the rationale above applies equally to the output ports and the record strongly supports such application.

28. Section 11.33(a) . The Commission revises the minimum requirements for decoders in § 11.33(a) of the Commission's rules to include the capability to decode CAP-formatted messages and convert them into SAME protocol-compliant messages, as set forth in § 11.56 and clarify that this requirement can be met through the deployment of an intermediary device. The Commission observes that the fundamental purpose of decoders is to ingest and process EAS messages, whether formatted in the SAME or CAP protocols, and adding CAP reception to § 11.33(a) will put CAP on the same footing as SAME. The Commission also finds it appropriate to clarify in § 11.33(a) that intermediary devices may be used to meet the fundamental decoder requirement of converting CAP messages into SAME-compliant messages.

29. Section 11.33(a)(1) and (a)(7) . For the same reasons described above with respect to encoder input configuration requirements, the Commission revises the decoder input configuration requirements in § 11.33(a)(1) to require at least one data input port (this section already requires the capability to receive “at least two audio inputs”). The Commission also deletes as unnecessary any references to RS232-C and 1200 baud. The Commission revises the decoder output configuration requirements in § 11.33(a)(7) to reflect these changes.

30. Section 11.33(a)(4) . The Commission amends § 11.33(a)(4) to include selective display and logging of the text that was compiled from CAP-formatted messages. The Commission finds that this revision is necessary to harmonize CAP-formatted message processing with SAME-formatted message processing. The Commission observes that its decision is supported by EAS equipment manufacturers, the industry affected by the rule revision, and that the revision imposes no additional technical obligations or costs either to these manufacturers or to EAS Participants.

31. Section 11.33(a)(10). The Commission adopts its tentative conclusion set forth in the Third FNPRM to decline CSRIC's recommendation to revise § 11.33(a)(10) to require use of the CAP-formatted message where a duplicate SAME-formatted message was also received. The Commission observes that the ECIG Implementation Guide includes a process for handling CAP messages where a duplicate SAME-formatted message also has been received, which prefers (but does not require) use of the CAP version. The Commission also observes that it is requiring CAP-to-SAME conversion in conformance with the ECIG Implementation Guide, which should satisfy the underlying thrust of CSRIC's recommendation.

32. Section 11.33(a)(11). The Commission revises § 11.33(a)(11) to ensure that EAN messages receive priority over all other EAS messages, regardless of whether the EAN message was received via the audio port or data port, or was formatted in SAME or CAP. The Commission finds that this action is necessary because as currently written, § 11.33(a)(11) could be interpreted to require a preference for SAME-formatted EAN messages received via over-the-air broadcast monitoring over duplicate CAP versions of the same message received via the data input port. The Commission also finds that such action is necessary to ensure that EAS equipment consistently gives EANs priority, regardless of how it receives them.

33. Miscellaneous Rule Changes Related to Fully Implementing CAP. The Fifth Report and Order contains several CAP-related decisions related to more fully implementing CAP within Part 11, as summarized below.

34. Section 11.1. The Commission concludes that the existing language defining the purpose of the EAS in § 11.1, which covers Federal, state, and local government users, and their designees, is broad enough to capture all authorized users of the EAS, whether they initiate SAME-formatted messages or CAP-formatted messages. Accordingly, the Commission declines CSRIC's recommendation to revise § 11.1 to include new CAP-related alert originators.

35. Section 11.11. The Commission amends § 11(a) to delete the reference therein to “analog television broadcast stations” and to include as a minimum requirement compliance with the CAP-related requirements in § 11.56. The Commission observes that the reference to “analog television broadcast stations” is obsolete in light of the fact that since June 13, 2009, all full-power U.S. television stations have broadcast over-the-air signals in digital only. The Commission also finds that incorporating the CAP-related obligations in § 11.56 by reference into section 11.11(a) is necessary to put CAP and SAME on an equal footing in Part 11.

36. Section 11.11 equipment deployment tables. The Commission adopts the revisions to the equipment deployment tables in § 11.11 proposed in the Third FNPRM. Specifically, the Commission amends the equipment deployment tables in § 11.11 by adding a footnote to the “EAS decoder” entries in the tables to clarify that the obligation to receive and translate CAP-formatted messages may be met by deploying an intermediary device. The Commission finds that because the tables in § 11.11 already require deployment of EAS decoders, a reference to intermediary devices (which are stand-alone equipment in their own right) is required for consistency in light of its decision to permit EAS Participants to deploy intermediary devices to meet their CAP-related obligations. The Commission also deletes the date references in the equipment deployment tables in § 11.11 (as well as cross-references to these dates in other sections of Part 11, such as § 11.51(c) and (d)), along with the entry for two-tone encoders. The Commission finds that this action is required for consistency and has support in the record.

37. The Commission also concludes that incorporating monitoring requirements or references thereto into § 11.11 is unnecessary. The Commission observes that no party filed comments on this issue directly. The Commission further observes that decoders already are required to meet the monitoring requirements in § 11.52, which it is amending to include CAP monitoring. Accordingly, the Commission concludes that the basic requirement to deploy a decoder (or intermediary device) necessarily triggers CAP monitoring obligations.

38. Section 11.20. The Commission concludes that § 11.20 of the Commission's rules need not be revised to accommodate the distribution of CAP messages, as recommended by CSRIC, or to incorporate CAP monitoring, as recommended by parties responding to the Part 11 Public Notice. Specifically, the Commission concludes that the language in § 11.20 is broad enough to encompass EAS messages originated in CAP format, to the extent that a given state relay network is involved in the distribution of that state's CAP-formatted alert messages. The Commission also observes that it does not know what role the state relay network will or will not play in the distribution of CAP messages in each state (or locality), or whether these will be consistent for all states (and localities). The Commission defers specifying how state and local SAME-formatted and CAP-formatted EAS messages are distributed to state and Local Area EAS Plans.

39. Section 11.21. The Commission amends the State Area EAS Plan requirements in section 11.21(a) to make clear that the State EAS Plans specify the monitoring assignments and the specific primary and backup path for SAME-formatted EANs and that the monitoring requirements for CAP-formatted EANs are set forth in § 11.52. The Commission observes that it does not know what role, if any, state alerting systems may play in disseminating CAP-formatted EANs in the future. Accordingly, the Commission also includes language that to the extent a state may distribute CAP-formatted EANs to EAS Participants via its state alerting system, its State EAS Plan must include specific and detailed information describing how such messages will be aggregated and delivered, just as it must for state CAP-formatted non-EAN messages.

40. The Commission observes that its proposal in the Third FNPRM to clarify § 11.21(a) (and 11.55(a)) that the mandate to process gubernatorial alerts applies to CAP alerts has become moot in light of its decision to eliminate the obligation that EAS Participants receive and process CAP-formatted gubernatorial alerts. The Commission also observes, however, that detailed information describing how state-originated CAP-formatted messages will be aggregated and distributed to EAS Participants, including applicable monitoring requirements, must be detailed in the State EAS Plans, just as the equivalent information for SAME-formatted alerts always has been, and amends § 11.21(a) to make this clear.

41. Section 11.21(c). The Commission defers taking any action regarding the FCC Mapbook, requirements in § 11.21(c) of the Commission's rules, until, at a minimum, it has completed its review of the test data it will be receiving from EAS Participants as a result of the November 9, 2011, Nationwide EAS Test.

42. Section 11.31(a)(3). In light of its decisions to require conversion of CAP-formatted messages into the existing EAS Protocol for transmission over the current EAS architecture, the Commission finds that the language in § 11.31(a)(3) limiting the EAS Protocol message to audio, video, or text remains valid and thus declines to revise the language in § 11.31(a) to better reflect CAP's capabilities.

43. Section 11.35(a). The Commission amends sections 11.35(a) and (b) to clarify that these sections apply to all equipment used as part of the EAS, including all equipment that performs the functions of decoding and encoding messages formatted in the EAS Protocol and the Common Alerting Protocol. The Commission observes that §§ 11.35(a) and (b) apply to EAS Encoders and Decoders and have terms that are broad enough to capture both integrated CAP-capable EAS devices as well as intermediary devices, but nonetheless clarifies the language in these sections to remove any ambiguity on this issue.

44. Section 11.45. The Commission declines to adopt CSRIC's recommendation to revise § 11.45 to prohibit CAP messages lacking “Actual” status indicators. The Commission observes that the language in § 11.45 already broadly prohibits the transmission of the EAS codes or attention signal “in any circumstances other than in an actual National, State or Local area emergency.” The Commission finds that this language is sufficiently broad to encompass EAS codes and attention signals generated from the receipt of a SAME-formatted or CAP-formatted message. The Commission also observes that the ECIG Implementation Guide, which the Commission adopts as the standard for CAP-to-SAME conversion, already requires that CAP messages have an “ACTUAL” status indicator for EAS activation.

45. Section 11.51. The Commission adopts the tentative conclusion in the Third FNPRM that there is no basis for adopting CSRIC's recommendation to revise the language in section 11.51 of the Commission's rules to state that equipment must be capable of transmitting (or “rendering”) a CAP-compliant message to EAS. The Commission observes that to the extent CSRIC meant to revise § 11.51 to ensure conversion of CAP messages into SAME-compliant messages, that requirement has been incorporated into section 11.56. The Commission also observes that this is a fundamental requirement that will be cross-referenced in other sections of Part 11.

46. Section 11.51(d), (g)(3), (h)(3), and (j)(2). The Commission amends § 11.51(d), (g)(3), (h)(3), and (j)(2) of the Commission's rules to require EAS Participants to derive the visual display elements, including the originator, event, location and the valid time period of the EAS message, from the CAP text data as described in section 3.6 of the ECIG Implementation Guide. The Commission observes that every commenter addressing this issue favored allowing EAS Participants to construct the video crawl from the enhanced text in CAP per the ECIG Implementation Guide. The Commission further observes that the ECIG Implementation Guide provides procedures for deriving the video crawl translation of a CAP-formatted message to include not only the EAS codes required under the Part 11 rules, but also additional text relating to the event, which it believes would provide more visual information to alert message viewers. The Commission observes that the utility of such additional text has never been in question. The Commission explains, for example, that the ability to provide additional descriptive information will make alerts more focused, which could be vitally important for Amber alerts and other alerts that require more specific information than the basic who, what, when and where that EAS codes provide. The Commission also observes that CAP alert originators will also be able to include in alerts suggested actions to avoid or prepare for the emergency condition; identify URLs and other sources of additional information; or provide a textual translation of the audio portion of a message, which would be particularly beneficial to the deaf and hard of hearing community.

47. The Commission concludes that its concerns expressed in the Third FNPRM regarding the potential for confusion that might arise if stations serving the same geographic area displayed differing video crawls (one based on the SAME elements only and the other based on the enhanced CAP text) are outweighed by the benefit that the enhanced text provides. The Commission observes that such scenarios would arise only when one (or more) of the stations in the geographic area affected by the emergency loses its ability to receive CAP messages but continues to receive over-the-air SAME messages. The Commission also observes that the ECIG Implementation Guide procedure for displaying enhanced CAP text has already been adopted by the industry and FEMA. The Commission also finds that requiring display of enhanced CAP text will provide an incentive for state and local alert message originators to deploy and use CAP-based alert systems and integrate such CAP systems with the EAS and FEMA's IPAWS system.

48. The Commission clarifies that it will continue to use the EAS header codes as the baseline requirement for the visual display. The Commission acknowledges that these codes take up some portion of the 1800 characters available for scrolling and that the EAS header codes may not always sufficiently describe the alert. However, the Commission nonetheless finds that some measure of uniformity and consistency in how alert messages are processed over the EAS is necessary. In this regard, the Commission observes that the ECIG Implementation Guide does not specify minimum descriptive information, and thus if the baseline requirement to include the EAS header codes were eliminated, there is no guarantee that such basic information would be included by the CAP message originator, and descriptive information could vary greatly from state to state and locality to locality. The Commission also finds that ensuring that the EAS header codes are included in CAP messages is critical because stations responsible for regenerating (via the AFSK encoding process) a CAP alert message that has been converted into a SAME-compliant message for the benefit of downstream monitoring stations can only encode the EAS header codes.

49. Section 11.54. The Commission declines to adopt CSRIC's recommendations to mandate that CAP-formatted messages be broadcast only if the scope of the alert is “Public,” and to revise § 11.54(b)(1) to include IPAWS monitoring. The Commission observes that it is only requiring EAS equipment to produce a SAME-compliant output, and there is no requirement in the EAS Protocol, or more broadly, in the Part 11 rules, to broadcast only “Public” EAS messages. The Commission also observes that the ECIG Implementation Guide, with which the Commission is requiring conformance, already specifies that EAS Participants must ignore CAP-formatted messages with a value in the “scope” field other than “Public.” With respect to CSRIC's proposal to revise § 11.54(b)(1) to include IPAWS monitoring, the Commission observes that it is deleting § 11.54(b)(1), and therefore this issue is moot.

50. Waivers. The Commission concludes that it would not be appropriate to adopt any form of blanket exemption from the basic obligations of monitoring for, receiving, and processing CAP-formatted messages. The Commission finds that waivers or exemptions from these requirements are best addressed on a case-by-case basis under the waiver standard, where the facts and circumstances of each individual case can be determined on its own merits. The Commission observes, however, that the primary method of distributing CAP messages will be via a broadband Internet connection and concludes that the physical unavailability of broadband Internet service offers a presumption in favor of a waiver. The Commission clarifies that any waiver based on the physical unavailability of broadband Internet access likely would not exceed six months, with the option of renewal if circumstances have not changed. The Commission also clarifies that questions concerning whether the cost of broadband Internet access in a given geographic area (or other potential substitute CAP alert distribution mechanisms) would constitute grounds for a waiver of the basic CAP-related obligations would be relative to the facts and circumstances of an individual case. The Commission observes that to the extent a waiver applies, the affected party would be required to continue to operate its legacy EAS equipment.

51. The Commission rejects the request of the American Cable Association to exempt cable systems of 500 subscribers or less from the Part 11 rules, concluding that there is no evidence that the costs of meeting the CAP-related obligations would jeopardize any class of entities subject to the Part 11 rules or are otherwise unreasonable. The Commission clarifies that noncommercial educational broadcast satellite stations operating pursuant to a “main studio waiver” need not deploy CAP-capable EAS equipment, provided that the EAS equipment deployed at the parent (hub) station site meets all applicable CAP-related and other requirements set forth in the Fifth Report and Order.

52. The Commission incorporates conformance with the ECIG Implementation Guide into its existing equipment certification process. The Commission concludes that EAS equipment must be certified as CAP compliant because it is amending Part 11 to require CAP-to-SAME conversion in conformance with the ECIG Implementation Guide, and thus, as part of the required Part 11 functions, it necessarily falls under Part 11's certification requirements.

53. In terms of implementation, the Commission finds that the test procedures developed and utilized in FEMA's IPAWS CA program constitute the most logical basis for demonstrating compliance with the CAP compliance requirements. The Commission further finds that integrated CAP-capable EAS devices that have passed the conformance testing performed under FEMA's IPAWS CA program may use the Supplier's Declaration of Conformity (SDoC) issued under that program to demonstrate CAP-to-SAME conversion in conformance with the ECIG Implementation Guide. The Commission also finds that integrated CAP-capable EAS devices that have not already passed the conformance testing performed under FEMA's IPAWS CA program must independently show conformance with the ECIG Implementation Guide through device testing pursuant to the test procedures developed and utilized in FEMA's IPAWS CA program. The Commission indicates that such testing can be performed by (i) the National Incident Management System (NIMS) Support Center—Supporting Technology Evaluation Project (STEP), which has assumed the role of testing for CAP and IPAWS profile compliance for EAS devices from the IPAWS CA program, or (ii) any other entity. The procedures and time periods for all cases described above are summarized as follows:

○ For integrated CAP-capable EAS devices that already have FCC certification, the grantee must submit a Class II Permissive Change filing that includes: (i) A cover letter explaining that the purpose of the filing is to apprise the Commission that the device has been tested for compliance with the ECIG Implementation Guide pursuant to the procedures adopted in this order and that the filing is being made to update the device's existing certification file; (ii) a statement signed by the grantee of the device's underlying FCC equipment authorization confirming compliance with section 11.56 of the Commission's rules; and (iii) a copy of either (a) the IPAWS CA program SDoC, if tested under FEMA's program; (b) the NIMS SDoC, if tested under the NIMS CAP testing program; or (c) for devices tested outside these programs, a copy of the test report showing that the device passed the test elements. If the integrated CAP-capable EAS device has already been marketed, the Class II Permissive Change filing must be submitted by June 30, 2012, the effective deadline for overall CAP compliance.

○ For integrated CAP-capable EAS devices that do not already have FCC certification, the grantee must include with the FCC certification application materials: (i) A cover letter explaining that the device has been tested for compliance with the ECIG Implementation Guide pursuant to the procedures adopted in this order; (ii) a statement signed by the grantee confirming compliance with section 11.56 of the Commission's rules; and (iii) a copy of either (a) the IPAWS CA program SDoC, if tested under FEMA's IPAWS CA program, (b) the NIMS SDoC, if tested under the NIMS CAP testing program, or (c) for devices tested outside these programs, a copy of the test report showing that the device passed the test elements.

54. Intermediary Devices. As a preliminary matter, the Commission finds that universal intermediary devices and component intermediary devices perform encoder or decoder functions and as such are subject to certification under § 11.34 of the Commission's rules. Specifically, the Commission observes that universal intermediary devices monitor, acquire, and decode CAP messages, using the relevant CAP data to generate ( i.e., encode) the EAS codes (FSK audio tones) and if present, an audio message, which can be received by the audio input of a legacy EAS device just as it would receive any other over-the-air SAME-formatted message. Accordingly, the Commission finds that universal intermediary devices are subject to certification both as decoders and encoders under § 11.34(a) and (b) of our rules, respectively.

55. The Commission observes that component intermediary devices also monitor for, acquire, and decode CAP messages, but because they are configured to interface with a specific legacy EAS device model, they may be capable of communicating the extracted data to the companion legacy EAS device model in a non-AFSK format and thus may not themselves be encoding the SAME data. The Commission concludes that under these circumstances, a component intermediary device would not be subject to certification as an encoder under § 11.34(a) in its capacity as a stand-alone device. The Commission also observes, however, that component intermediary devices are designed for and intended to be operated with specific legacy EAS device models. Accordingly, the Commission finds that the output of the combined system configuration of these devices performs encoding functions which subjects such configuration to certification under § 11.34(a). In addition, the Commission observes that component intermediary devices perform decoding functions in their capacity as stand-alone devices that subject them to certification under § 11.34(b).

56. With respect to incorporating conformance with the ECIG Implementation Guide for intermediary devices into the existing certification process, the Commission observes that FEMA's IPAWS CA program tested intermediary devices for conformance with the ECIG Implementation Guide. Given the nature of the two types of intermediary devices, the Commission concludes that the test procedures developed and utilized in FEMA's IPAWS CA program for testing intermediary devices constitute a sufficient basis for demonstrating compliance with the ECIG Implementation Guide in a way that would impose minimal costs on the affected parties. Accordingly, the Commission concludes that the streamlined certification processes outlined above for integrated CAP-capable EAS devices are equally suitable for intermediary devices. However, with respect to certification testing for ECIG Implementation Guide compliance and Part 11 compliance, the Commission concludes that, because component intermediary devices are designed and intended to be operated with specific legacy EAS device models, certification testing for ECIG Implementation Guide compliance and Part 11 compliance of these devices must be performed on the combined system— i.e., the component intermediary device as configured with the specific legacy EAS device model(s) with which it is marketed and intended to be used. The Commission also clarifies that universal type intermediary devices can be tested as stand-alone devices. The procedures and time periods for all cases described above are summarized as follows:

○ For intermediary devices that already have FCC certification, the grantee must submit a Class II Permissive Change filing that includes: (i) A cover letter explaining that the purpose of the filing is to apprise the Commission that the device has been tested for compliance with the ECIG Implementation Guide pursuant to the procedures adopted in this order and that the filing is being made to update the device's existing certification file; and (ii) a copy of either (a) the IPAWS CA program SDoC, if tested under FEMA's IPAWS CA program; (b) the MINS SDoC, if tested under the NIMS CAP testing program; or (c) for devices tested outside these programs, a copy of the test report showing that the device passed the test elements. If the intermediary device has already been marketed, the Class II Permissive Change filing must be submitted by June 30, 2012, the effective deadline for overall CAP compliance.

○ For intermediary devices that do not already have FCC certification, the grantee must include with the FCC certification application materials: (i) A cover letter explaining that the device has been tested for compliance with the ECIG Implementation Guide pursuant to the procedures adopted in this order; and (ii) a copy of either (a) the IPAWS CA program SDoC, if tested under FEMA's IPAWS CA program; (b) the NIMS SDoC, if tested under the NIMS CAP testing program; or (c) for devices tested outside these programs, a copy of the test report showing that the device passed the test elements.

57. Modified Equipment. The Commission concludes that the existing requirements governing modifications to certified equipment in section 2.1043 of the Commission's rules are sufficient to cover CAP-enabled equipment. The Commission clarifies that modifications to authorized EAS equipment that are necessary to implement revisions to the EAS event codes, originator codes, or location codes set forth in section 11.31 may be implemented as Class I permissive changes. The Commission also observes that any future revisions to the CAP-related standards adopted by FEMA could not become effective in the Part 11 rules absent a rulemaking proceeding.

58. The Commission concludes that the mandate to receive and transmit CAP-formatted messages initiated by state governors is not necessary at this time and is potentially detrimental to effective deployment of CAP-based alerts. Accordingly, the Commission eliminates the mandate from Part 11. In arriving at this determination, the Commission observes that there are a number of practical problems associated with implementing the mandate within the existing EAS system architecture, and overcoming these problems would likely impose significant costs on and disruption to its transitional approach for accommodating CAP within the EAS. The Commission points out as particularly problematic the issue of whether and how the gubernatorial CAP-formatted message could be converted into an EAS Protocol-formatted message for the benefit of downstream monitoring stations. The Commission observes, for example, that the ECIG Implementation Guide procedures for identifying a CAP message as being from a governor only works for an EAS Participant that receives the CAP message, as the CAP-formatted gubernatorial alert cannot be converted and encoded as an existing EAS Protocol-formatted message.

59. The Commission also observes that adding a new originator code to make the gubernatorial CAP mandate operational within the legacy EAS domain presents a range of problems. The Commission points out, for example, that such a revision to the EAS Protocol would require updates to every integrated CAP-capable EAS device, intermediary device, and legacy EAS device, the latter of which may not be capable of being updated and would have to be replaced (along with any intermediary device with which they might be configured). The Commission also points out that implementing the mandatory gubernatorial alert within the revised EAS rules would present other equally troubling issues for which there are no ready or obvious technical solutions. The Commission observes that these problems include implementing priority status within CAP for a gubernatorial alert and mandating broadcast of a category of messages that do not specify an actual emergency. The Commission further observes that such an open ended mandate might, in some cases, allow the issuance of a mandatory message that may be inappropriate for an alert.

60. The Commission also questions whether the mandatory gubernatorial alert requirement would provide any tangible benefit. The Commission observes that while the mandate was adopted in 2007 as an incentive to encourage and facilitate state use of the EAS network, it does not appear that this rationale applies today. In this regard, the Commission observes that approximately twenty-four states (including one territory) have either deployed CAP systems or are in the planning stages of deploying CAP systems, and given the current economic climate, it seems unlikely that states that have not already deployed or begun plans to deploy CAP systems will do so simply because of an enforceable mandate to carry CAP-formatted gubernatorial messages. The Commission further observes that there is near universal voluntary participation by EAS Participants in carrying state and local EAS messages. Accordingly, the Commission concludes that having an enforceable means to guarantee carriage of gubernatorial CAP alert messages seems unnecessary. Finally, the Commission observes that FEMA's IPAWS will provide a means for a State governor, or the governor's authorized representative, to issue targeted CAP-based alerts, not only over the EAS, but over mobile devices.

61. The Commission amends the Part 11 EAS rules so that EANs will be processed on a message-by-message basis, like any other EAS message, only on a mandatory and priority basis. As part of this rule simplification, the Commission eliminates the Emergency Action Termination (EAT) event code. Under the Commission's revised approach, receipt of an EAN will effectively open an audio channel between the originating source and the EAS Participant's facilities until the EAS Participant receives an End of Message (EOM) code. After the EAS Participant receives the EOM, the EAS equipment will return to regular programming until receipt of the next EAS message. If that message is another EAN, then the process would repeat; if that message is a state or local EAS message, then that message would be aired in accordance with the specifications in the State or Local Area EAS Plan. The Commission concludes that revising the rules governing EAN processing is necessary because they were designed to accommodate the EAN Network, which was phased out in 1995, and purely manual operation. The Commission also observes that the current EAN processing rules do not translate well for automated operation, are confusing, and in some cases, inconsistent with other Part 11 rules.

62. With respect to the question raised in the Third FNPRM regarding whether to eliminate the option for EAS Participants to manually process EANs (but not state or local EAS messages), the Commission finds that it would be premature to take any action on such matter until after it has reviewed the test data from the November 9, 2011, Nationwide EAS Test. Accordingly, the Commission defers taking any action on this matter at this time.

63. Revising Section 11.54. The Commission deletes §§ 11.54(b)(1), (3), (4), (10), and 11.54(c) from the Part 11 rules. The Commission finds that these provisions are superfluous in the context of the message-by-message processing it is adopting for EANs.

64. Deleting Section 11.42. The Commission deletes § 11.42 from the Part 11 rules because it no longer serves any purpose.

65. Eliminating the EAS Operating Handbook. With respect to the question raised in the Third FNPRM regarding whether to eliminate the EAS Operating Handbook, the Commission finds that it would be premature to take any actions on such matter until after it has reviewed the test data from the November 9, 2011, Nationwide EAS Test. Accordingly, the Commission defers taking any action on this issue at this time.

66. However, the Commission is deleting §§ 11.54(a), (b)(2), and (5)-(8) because they serve no purpose under the message-by-message processing approach it adopts for handling EANs. The Commission observes that these provisions all refer to procedures set forth in the EAS Operating Handbook designed to implement the National Emergency Condition, which the Commission is eliminating. The Commission observes that if it elects to retain the EAS Operating Handbook, it will at most serve as an informational document to aid EAS Participant personnel in handling EAS messages manually and will not itself establish any procedures (such as on-air announcements) that must be followed.

67. Non-Participating National (NN) Sources. The Commission eliminates NN status on the grounds that it is not necessary. Accordingly, the Commission deletes references to NN status from §§ 11.18, 11.41, 11.54, and 11.55 of the Commission's rules, and deletes § 11.19 altogether. The Commission clarifies that any existing stations operating under NN status must meet the full message-by-message EAN processing requirements, and CAP-related requirements, by the June 30, 2012, general deadline for processing CAP-formatted messages. The Commission finds that elimination of NN status is warranted because it does not appear to serve any purpose today, as NN entities already are required to deploy a decoder that complies with all EAS message processing requirements and follow all of the EAN processing requirements, except broadcasting the audio message. The Commission also observes that there are relatively few NN stations, and that no entity with or without NN status filed comments objecting to the proposal to eliminate NN status raised in the Third FNPRM .

68. Deleting Section 11.44. The Commission deletes § 11.44 from the Part 11 rules on grounds that this section is superfluous under the message-by-message approach adopted by the Commission for processing EANs. Although priority for EANs already is provided for in the other sections of Part 11, the Commission also incorporates language on EAN preemption and priority into the definition of the EAN in section 11.2.

69. Revising Section 11.53. The Commission deletes § 11.53 from the Part 11 rules as superfluous in light of its decisions to delete almost all of § 11.54 and implement message-by-message processing for EANs. For informational purposes, however, the Commission incorporates the relevant language in § 11.53(a) and (b), describing Federal, State, and local origination of the EAN, into the definition of EAN in § 11.2 and clarifies that such origination applies only to EANs formatted and transmitted in accordance with the EAS Protocol requirements in § 11.31.

70. Revising Section 11.11(a). The Commission revises section 11.11(a) to remove the references therein to ``participating broadcast networks, cable networks and program suppliers; and other entities and industries operating on an organized basis during emergencies at the National, State and local levels'' on grounds that these references are a holdover from the Emergency Broadcasting System (EBS) rules and serve no purpose under the message-by-message approach adopted by the Commission for processing EANs.

71. Deleting Section 11.16. With respect to the question raised in the Third FNPRM regarding whether to delete § 11.16, the Commission observes that the test data from the November 9, 2011, Nationwide EAS Test, which is under review, may provide insight on this matter. Accordingly, the Commission defers taking any action on this issue at this time.

72. However, the Commission is deleting § 11.54(b)(12) and incorporating that section's requirement for Primary Entry Point (PEP) stations to follow the National Control Point Procedures into § 11.16.

73. LP-1 Definition. The Commission's assessment of State EAS Plans confirms that there are both radio and TV stations serving as LP-1 stations and it therefore revises the definition for LP-1 stations in section 11.2(b) to reflect that these stations can be a radio or a TV station.

74. PEP Definition. The Commission deletes section 11.14, which describes PEP stations, from the Part 11 rules because it mirrors the definition of PEP stations in section 11.2(a) and is therefore superfluous. The Commission also revises section 11.2(a) to delete the numerical reference to the actual number of PEP stations in existence, and clarify that the PEP stations distribute EAS messages in accordance with the EAS Protocol requirements in section 11.31.

75. EAN and EAT Definitions. The Commission deletes section 11.13 from the Part 11 rules and folds the definition for the EAN currently in section 11.13 into section 11.2. The Commission observes that the proper location in Part 11 for the EAN definition, currently at section 11.13(a), is the definitions section in section 11.2. Because the Commission also is deleting the EAT, the remaining subsection in section 11.13, section 11.13(b), which describes the EAT, is superfluous, leaving no purpose for retaining section 11.13 in Part 11.

76. Geographic Codes. The Commission changes the references to the Federal Information Processing Standard (FIPS) numbers (as described by the U.S. Department of Commerce in National Institute of Standards and Technology publication FIPS PUB 6-4.FIPS number codes) in sections 11.31 and 11.34(d) of the Commission's rules to reflect the American National Standards Institute (ANSI) Codes INCITS 31.200x (Formerly FIPS 6-4), Codes for the Identification of Counties and Equivalent Entities of the United States, its Possessions, and Insular Areas standard that superseded it. The Commission observes that the FIPS standard is outdated and requires revision to keep the Part 11 rules current.

77. LPTV and LPFM. The Commission revises the analog and digital broadcast station equipment deployment table in section 11.11(a) of the Commission's rules to correctly identify ``LPFM'' (Low Power FM) and ``LPTV'' (Low Power TV) in their respective columns. The Commission also revises sections 11.61(a)(1)(i) and 11.61(a)(2)(ii) to include LPFM stations. The Commission observes that these corrections are necessary to ensure that the rules reflect prior decisions.

78. Attention Signal. The Commission concludes that the Attention Signal continues to serve a useful purpose in the EAS framework as an audio notification to the general public that an alert is about to be aired, and therefore will retain the Attention Signal in the Part 11 rules. However, the Commission revises section 11.32(a)(9)(iv) to require that the Attention Signal be set to eight seconds in duration, which reflects what has become common practice and ensures that when the signal is aired, it is done in a consistent manner. In addition, the Commission deletes section 11.33(b), which establishes Attention Signal requirements for decoders, because these requirements were used for demuting and activation functions that do not apply to the EAS. The Commission also deletes section 11.12, which specifies that EBS Attention Signal encoders and decoders can remain in operation until January 1, 1998, because this section is obsolete.

79. Section 11.33(a)(9). With respect to the decoder reset requirements specified in section 11.39(a)(9) of the Commission's rules, the Commission finds that EAS Participants should be allowed to relay, for the benefit of downstream monitoring stations, messages they received that did not include an EOM within the reset time limit set on their decoder (presumably, two minutes). More specifically, the Commission finds that when a non-EAN alert exceeds that two minute mark, the EAS Participant's EAS device should be allowed to generate an EOM to make up for the EOM that was not received with the original message. The Commission observes that the record indicates that current EAS equipment already functions in this manner, and that there are many reasons why an EOM might not arrive before the reset value triggers that have nothing to do with the reliability of the message. The Commission further observes that the only way to ensure that an EOM did arrive for a given EAS message prior to the reset value would be to delay relay of that message until the entire message and its EOM has been received, which could take up to two minutes (or more), which it concludes is not in the public interest.

80. Section 11.33(a)(3)(ii). The Commission declines to eliminate the requirement in section 11.33(a)(3)(ii) to delete messages upon expiration of their time periods, as proposed in the Third FNPRM . The Commission concludes that the valid time period should continue to be set by the message originator, which is the party most responsible for the public's safety. The Commission also observes that EAS Participants have repeatedly stressed that they do not want the responsibility of alert origination, and allowing them to air expired alerts would effectively put them in that role.

81. Training. The Commission reiterates that it lacks the authority to raise or distribute funds for EAS-related purposes and therefore cannot provide training for state and local emergency managers. The Commission observes, however, that it can hold workshops and summits as part of its outreach mission. The Commission also observes that it intends to examine the relative merits of making the FCC Mapbook and EAS Operator Handbook more informative and useful for EAS Participants and their personnel.

82. Persons with Disabilities. The Commission observes that its decision to require EAS Participants to meet the video display requirements in sections 11.51(d), (g)(3), (h)(3), and (j)(2) by using the enhanced text in the CAP message will enable CAP alert message originators to provide a transcript of the audio message, which helps harmonize the EAS rules with the requirements of section 79.2 of the Commission's rules. The Commission also observes that requiring display of enhanced CAP text will provide an incentive for state and local alert message originators to deploy and use CAP-based alert systems. The Commission believes that providing state and local alert message originators with a conduit for the transmission of transcripts of the audio portions of their messages should encourage alert originators to craft messages that will provide accessible alerting for persons with hearing and vision disabilities.

83. Proposals Beyond the Scope of the Fifth Report and Order. The Commission identifies several issues raised by comments responding to the Third FNPRM that were not raised in the Third FNPRM . Because these issues were not raised in the Third FNPRM , the Commission does not resolve them in the Fifth Report and Order.

84. As required by the Regulatory Flexibility Act of 1980, see 5 U.S.C. 603, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) of possible significant economic impact on small entities of the policies and rules addressed in this document. The FRFA is set forth in Appendix A.

85. This Fifth Report and Order adopts modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. These modified requirements will be submitted to the Office of Management and Budget (OMB) under an emergency request for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), it previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.

86. In this present document, the Commission has assessed the effects of revisions to current Part 11 reporting, recordkeeping, or compliance requirements as set forth in this Fifth Report and Order, and does not expect these revisions to alter the recordkeeping burden of any EAS Participants to any appreciable degree. There are no results specific to businesses with fewer than 25 employees.

87. The Commission will send a copy of this Fifth Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act (“CRA”), see 5 U.S.C. 801(a)(1)(A).

88. Accordingly, it is ordered that pursuant to sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706, and 715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 154(o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, this Fifth Report and Order is adopted.

89. It is further ordered that the rules adopted herein will become effective thirty (30) days after the date of their publication in the Federal Register , except for any reporting, recordkeeping or third-party collection requirements that contain new or modified information collections. Those rules will become effective on the date specified in a Commission notice published in the Federal Register announcing their approval under the Paperwork Reduction Act by the Office of Management and Budget.

90. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Fifth Report and Order, including the Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR Part 11 as follows:

The American burying beetle ( Nicrophorus americanus, ABB) was listed as endangered throughout its range on July 13, 1989 (54 FR 29652), under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ), without critical habitat (USFWS 2008, p. 2). The Act provides that species listed as endangered are afforded protection primarily through the prohibitions of section 9 and the requirements of section 7. Section 9 of the Act, among other things, prohibits the take of endangered wildlife. “Take” is defined by the Act as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Section 7 of the Act outlines the procedures for Federal interagency cooperation to conserve federally listed species and protect designated critical habitat. It mandates that all Federal agencies use their existing authorities to further the purposes of the Act by carrying out programs for the conservation of listed species. It also states that Federal agencies must, in consultation with the Service, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Section 7 of the Act does not affect activities undertaken on private land unless they are authorized, funded, or carried out by a Federal agency.

Under section 10(j) of the Act, the Secretary of the Interior can designate reestablished populations outside the species' current range, but within its historical range, as “experimental.” With the experimental population designation, the relevant population is treated as threatened for purposes of section 9 of the Act, regardless of the species' designation elsewhere in its range. Threatened designation allows us discretion in devising management programs and special regulations for such a population. Section 4(d) of the Act allows us to adopt whatever regulations are necessary and advisable to provide for the conservation of a threatened species. In these situations, the general regulations that extend most section 9 prohibitions to threatened species do not apply to that species, and the 10(j) rule contains the prohibitions and exemptions necessary and appropriate to conserve that species.

Based on the best scientific and commercial data available, we must determine whether the experimental population is essential or nonessential to the continued existence of the species. The regulations (50 CFR 17.80(b)) state that an experimental population is considered essential if its loss would be likely to appreciably reduce the likelihood of survival of that species in the wild. All other populations are considered nonessential. We have determined that this experimental population will not be essential to the continued existence of the species in the wild. This determination has been made because, since the time the species was listed, wild populations of the ABB are now found in seven additional States, three of which are considered robust and suitable for donor populations (USFWS 2008, p. 14). Therefore, the Service will designate a nonessential experimental population (NEP) for the species in southwestern Missouri.

When NEPs are located outside a National Wildlife Refuge or National Park Service unit, then, for the purposes of section 7, we treat the population as proposed for listing and only section 7(a)(1) and section 7(a)(4) of the Act apply. In these instances, NEPs provide additional flexibility because Federal agencies are not required to consult with us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a species proposed to be listed. The results of a conference are in the form of conservation recommendations that are optional as the agencies carry out, fund, or authorize activities. Because the NEP is, by definition, not essential to the continued existence of the species, the effects of proposed actions affecting the NEP will generally not rise to the level of jeopardizing the continued existence of the species. As a result, a formal conference will likely never be required for ABBs established within the NEP area. Nonetheless, some agencies voluntarily confer with the Service on actions that may affect a proposed species. Activities that are not carried out, funded, or authorized by Federal agencies are not subject to provisions or requirements in section 7 of the Act.

American burying beetles used to establish an experimental population will come from a captive-rearing facility at the St. Louis Zoo, which propagates this species under the Federal Fish and Wildlife Permit #TE135297-0. The donor population for the Zoo is a wild population from Ft. Chaffee, Arkansas. Each spring, Ft. Chaffee Maneuver Training Center (MTC) will provide the St. Louis Zoo with up to 15 ABB pairs, provided their removal is not likely to jeopardize the continued existence of the species and appropriate permits are issued in accordance with our regulations (50 CFR 17.22) prior to their removal. We will ensure, through our section 10 permitting authority and the section 7 consultation process, that using individuals from donor populations for release is not likely to jeopardize the continued existence of the species in the wild. ABBs will be transported to St. Louis Zoo staff to augment the St. Louis Zoo's captive population, or possibly for direct reintroduction to Wah'kon-tah Prairie. The purpose of the captive population is to provide stock for reintroductions in “suitable areas” within the species' historical range, in accordance with recovery action 7.2 of the American Burying Beetle Recovery Plan (USFWS 1991, p. 52).

We have not designated critical habitat for the ABB. Section 10(j)(2)(C)(ii) of the Act states that critical habitat shall not be designated for any experimental population that is determined to be nonessential. Accordingly, we cannot designate critical habitat in areas where we establish an NEP.

We will not change the NEP designation to “essential experimental,” “threatened,” or “endangered” within the NEP area without a public rulemaking. Additionally, we will not designate critical habitat for this NEP, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).

The ABB is the largest member of the family Silphidae in North America, and the largest among a guild of species that breed and rear their young on vertebrate carcasses. Because carrion is a scarce and ephemeral resource, ABBs must traverse large areas in search of it. By necessity, they are strong flyers capable of covering several miles overnight. The farthest recorded dispersal in a year for reintroduced ABBs is 3 miles (4.8 km) (McKenna-Foster et al. 2007, p. 9). Data from the Nantucket reintroduction show that the farthest dispersal in one season was 3 miles (4.8 km) (McKenna-Foster et al. 2007, p. 9). Data from Nebraska indicate that the vast majority (92 percent) of ABB were recaptured within 0.6 miles (1 km) of their initial capture within the same season (Bedick et al. 1999, p. 176). After ABBs find an appropriate-sized carcass, a pair of beetles cooperatively buries and prepares the carcass by removing its fur or feathers and coating it with antibacterial secretions. These activities require soil excavation; consequently soils must be conducive for excavation, and plant roots systems must not hinder excavation. Reproductive habitat activities also require soil that is appropriately moist. Both parents may remain to feed the larva with regurgitated meat until they are capable of feeding themselves. After pupation, new adults emerge within 30-45 days. ABBs are generally considered univoltine (having one brood or generation per year) in the wild, with a life span of about 12 months. They are a habitat generalist with regards to vegetation, and will eat all classes of vertebrate carcasses (USFWS 2008, pp. 8, 11).

The ABB's historical range included 35 States and three Canadian provinces in the eastern temperate areas of North America (USFWS 1991, p. 4). At the time of listing, only two ABB populations were known, one on Block Island, Rhode Island, and one in Latimer County, Oklahoma. Subsequent monitoring in other States documented additional populations in Arkansas, Nebraska, Texas, South Dakota, and Kansas (USFWS 2008, p. 16). The population on Block Island is the only naturally occurring population east of the Mississippi River. The ABB also occurs in captive-breeding populations. Currently, captive populations are maintained at the Roger Williams Park Zoo in Providence, Rhode Island; St. Louis Zoo in St. Louis, Missouri; The Wilds in Ohio; and the Cincinnati Zoo in Cincinnati, Ohio.

The reasons for the decline of the ABB during the 1900s are still unknown. Many hypotheses for the decline have been suggested, such as the widespread use of dichloro-diphenyl-trichloroethane (DDT) and other pesticides, habitat loss and fragmentation, decrease in the availability of carrion, increased use of artificial lighting, an unidentified pathogen, increase in competition from vertebrate scavengers, and an increase in competition from other carrion insects (Sikes and Raithel 2002, pp. 104-109). Predation is not believed to be an important mortality factor for the ABB, although interaction with fire ants, whether through competition or predation, is thought to adversely affect ABB populations. Disease is not known to be a factor in the decline of the ABB, but knowledge of diseases of insects is in its infancy (USFWS 2008, p. 31). Competition for carrion by scavengers is thought to be an important factor in the decline of ABB (Sikes and Raithel 2002, p. 111). Competition with ants, flies, and vertebrate scavengers, as well as other species of burying beetles, can be limiting factors for ABBs (Sikes and Raithel 2002, p. 111). Weather extremes, such as drought, wildfire, hurricanes, and ice storms, may affect the viability of existing populations (USFWS 2008, p. 33).

Restoring an endangered or threatened species to the point where it is recovered is a primary goal of our endangered species program. The ABB recovery plan was developed within 2 years of the listing of the species and reflects the best information available at that time. The recovery objectives of the 1991 plan are to (1) “reduce the immediacy of the threat of extinction * * *” and (2) “improve its status so that it can be reclassified from endangered to threatened.” The recovery plan did not include delisting criteria; however, criteria for the reclassification are:

(a) Three populations of N. americanus have been reestablished (or additional populations discovered) within each of four broad geographical areas of its historical range: the Northeast, the Southeast, the Midwest, and the Great Lakes States;

(b) Each population contains a minimum of 500 adults as estimated by capture rates per trap night and black lighting effort; and

(c) Each population is demonstrably self-sustaining for at least 5 consecutive years (or is sustainable with established long-term management programs) (USFWS 1991, pp. 31-32).

The 1991 Recovery Plan considers conducting additional reintroductions a top priority (Priority 1) (USFWS 1991, p. 63). The first reintroduction site for the ABB was Penikese Island, Massachusetts, in 1990. After ABBs were released on Penikese for 4 years, the population persisted there for about 8 years (until 2002). No ABBs were subsequently found there during modest trapping efforts from 2003 to 2006. Nantucket Island was the next ABB reintroduction site, which was initiated in 1994. Release of ABBs ended in 2006, and the population has persisted. Since 1998, there have been sporadic efforts to reintroduce a population in Ohio, but ABBs have yet to be recaptured after overwintering (USFWS 2008, p. 5).

Historically, the ABB was recorded in 13 counties throughout Missouri, and was most likely found throughout the State. The last documented ABB occurrence in the State was collected in a light-trap from Newton County (southwest Missouri) in the mid-1970s (Simpson 1991, p. 1). Monitoring for existing ABB populations has been ongoing in Missouri since 1991. A concerted monitoring effort has been conducted by the St. Louis Zoo since 2002, and monitoring began on Wah'kon-tah Prairie in 2004. During the period 2002-2009, researchers monitored 49 sites from 25 counties in Missouri for ABB (Merz 2009, p. 8). No ABBs were observed or collected in any of the sites surveyed in Missouri since the 1970s.

The reintroduction site, Wah'kon-tah Prairie, is a 3,030-acre (1,226-hectare) site jointly owned and managed by the Missouri Department of Conservation (MDC) and The Nature Conservancy (TNC). It is a designated special focus area, where TNC is working to restore a greater prairie chicken ( Tympanuchus cupido ) population and native tallgrass prairie. Wah'kon-tah Prairie straddles the border of St. Clair and Cedar Counties, and is very close to Bates and Vernon Counties, all within southwestern Missouri. The area within the borders of these four counties, 2,885 square miles (7,472 square kilometers (km)), is the designated area for the nonessential experimental population (NEP). The minimum distance from the reintroduction site to outside the designated experimental population boundary is 17 miles (27 km); the greatest distance is 52 miles (84 km). This NEP area was selected because of its proximity to the last recorded ABB sighting in Missouri, the quantity of recent ABB monitoring, and the relative abundance of carrion (Hamilton and Merz 2010, pp. 4-5).

According to the St. Louis Zoo's American Burying Beetle Activity Summary in 2009, 12 sites within the NEP area were monitored for carrion beetles (Jean et al. 2009, p. 1). Five of these sites were on Wah'Kon-Tah Prairie, one of which was sampled for 66 days throughout the season. The pitfall traps within the NEP area collected 46,522 individuals, of which 86 percent were other species of the beetle family Silphidae (to which the ABB belongs); the remainder were other insects and spiders. No ABBs were found (Jean et al. 2009, p. 1).

Section 10(j) of the Act requires that an experimental population be wholly separate geographically from wild populations of the same species. Because there are no known populations of ABB in Missouri, and there are no records of ABB in the bordering counties of eastern Kansas, this NEP is geographically separate from all other known ABB populations. Based on the movement data of other ABB populations, we do not believe the reintroduced ABBs will move beyond the designated NEP area. If monitoring shows that the reintroduced ABB are moving toward a border of the NEP, we may seek to amend the NEP boundaries, after monitoring the possible new NEP areas. If individuals of this population move outside the designated NEP area, we will presume that they came from the reintroduced population. We may then amend this regulation to enlarge the boundaries of the NEP area to include the entire range of the expanded population.

Captive-bred beetles from the St. Louis Zoo, wild beetles from Ft. Chaffee, or both, will be brought to the release site in late spring by representatives of the St. Louis Zoo or the Service. ABBs will be paired 24 hours in advance of release. These beetles will be marked by clipping the elytra (the modified forewings that encase the thin hind wings used in flight) to distinguish between captive-bred and wild beetles, and between the release transects. For the release, a soil plug is dug and removed, and paired ABBs are provisioned with a 120-200 gram (4-7 ounce) carcass and placed into the hole. The soil plug is then placed back over the hole and a wire screen is stapled over the area to keep out scavenging animals and birds. These holes will be dug in several lines, or transects. The number of transects will be determined by the number of beetles available, and apportioned in equal numbers (Hamilton and Merz 2010, p. 7). The ABB Reintroduction Plan contains additional information on the release procedures and monitoring protocols (contact the person listed under FOR FURTHER INFORMATION CONTACT for copies of this document).

We will ensure, through our section 10 permitting authority and the section 7 consultation process, that the use of ABBs from the donor population at Ft. Chaffee, Arkansas, for releases into Wah'kon-tah Prairie is not likely to jeopardize the continued existence of the species in the wild. These donor populations are closely monitored by the Service, and over collection will not be permitted. Establishing additional ABB populations within the species' historical range is an important step in recovery (USFWS 1991, p. 52).

The special rule that accompanies this section 10(j) rule is designed to broadly exempt from the section 9 take prohibitions any take of ABBs that is accidental and incidental to otherwise lawful activities. We provide this exemption because we believe that such incidental take of members of the NEP associated with otherwise lawful activities is necessary and advisable for the conservation of the species, as activities that currently occur or are anticipated in the NEP area, such as haying, grazing, and occasional burning of pastures, are generally compatible with ABB recovery.

This designation is justified because no adverse effects to extant wild or captive ABB populations will result from release of progeny from the captive flock. We also expect that the reintroduction effort into Missouri will result in the successful establishment of a self-sustaining population, which will contribute to the recovery of the species.

Management issues related to the ABB NEP that have been considered include:

(a) Mortality: The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity (50 CFR 17.3), such as agricultural activities and other rural development, and other activities that are in accordance with Federal, Tribal, State, and local laws and regulations. Incidental take of the ABB within the NEP area will not be prohibited, provided that the take is unintentional and is in accordance with the special rule that is a part of this 10(j) rule. However, if there is evidence of intentional take of an ABB within the NEP that is not authorized by the special rule, we will refer the matter to the appropriate law enforcement entities for investigation.

(b) Special handling: In accordance with 50 CFR 17.21(c)(3), any employee or agent of the Service, any other Federal land management agency, or State personnel, designated for such purposes, may in the course of their official duties, handle ABBs to aid sick or injured ABBs, or to salvage dead ABBs. However, non-Service personnel and their agents would need to acquire permits from the Service for these activities.

(c) Coordination with landowners and land managers: Through various meetings, the Service and cooperators have identified issues and concerns associated with the ABB population establishment. The population establishment was discussed with potentially affected State agencies and private landowners. Affected State agencies, landowners, and land managers have either indicated support for, or no opposition to, the population establishment, provided an NEP is designated and a special rule is promulgated which does not prohibit incidental take.

(d) Monitoring: Surveys conducted prior to releasing the ABBs will assess the over-wintering population from the prior year's release. During reintroduction, carcasses will be exhumed 10-12 days after burial to determine breeding success and the number of third instar (a developmental stage in insects representing their third molt) larvae present. This should provide a close estimate of the number of offspring produced in that first generation.

During the period from June through August, each reintroduction site will be surveyed for at least three nights in duration. In addition to sampling at the release site(s), surrounding areas will be sampled in at least four directions, approximately 0.6 mile (1 km) away, for at least three consecutive nights, following a statistically-based monitoring plan. Monitoring at the release sites and areas within approximately 0.6 mile (1 km) of those sites should detect the majority of the released beetles. Monitoring using pitfall trap surveys in the subsequent early summer and fall following release will provide an estimate of breeding pair productivity by collecting young adults following emergence. This will also allow for an estimate of overwinter survival of progeny. Beetles captured in the late summer and fall will be paired, provisioned with a carcass, and held until all pairs can be reintroduced back to the original release sites. We intend to reintroduce at least 50 pairs each year for 5 years, or until data suggest a viable population of more than 1,000 individuals has been established. At year five, the cooperators will evaluate the project's successes and failures and make adjustments to the ABB reintroduction project, if necessary.

In the proposed rule published on July 22, 2011 (76 FR 43973), we requested that all interested parties submit written comments on the proposal by August 22, 2011. We also contacted appropriate Federal and State agencies, scientific experts, and other interested parties, and invited them to comment on the proposal. A newspaper notice inviting general comments was published in the El Dorado Springs (Missouri) Star, and an article inviting the same was published in the El Dorado Springs (Missouri) Sun. We did not receive any requests for a public hearing, but we did hold a public meeting in El Dorado Springs, Missouri, on August 11, 2011.

We reviewed all comments we received from the public and peer reviewers for substantive issues and new information regarding the creation of an experimental population of American burying beetles in southwestern Missouri. All substantive information provided during the comment period has either been incorporated into this final determination or is addressed below. We received seven written comments, including comments from three peer reviewers. Six comments supported the proposed NEP listing, including the comments from the three peer reviewers. One comment had no substantive issues.

In accordance with our policy on peer review, published on July 1, 1994 (59 FR 34270), we solicited expert opinions from three individuals with scientific expertise that included familiarity with the species and their reintroduction. We received responses from all three peer reviewers from whom we requested comments. All three responses supported the 10(j) rule, and brought up no issues to be addressed.

Comment: The Missouri Department of Conservation (MDC) provided recommendations on the post-release monitoring protocol described in the proposed rule and in the reintroduction plan. Based on information from other ABB reintroduction efforts, MDC commented that a sampling radius of 0.6 mile (1 km) would be more likely to capture dispersing ABBs than the 1 mile (1.6 km) described in the proposed rule. Furthermore, MDC suggested adding four specific sampling directions (NW., NE., SE., and SW.) to the four directions described in the proposed rule and the reintroduction plan.

Our response: We will ensure implementation of a statistically-based post release monitoring, and we have revised the final rule and reintroduction plan to reflect that sampling will occur approximately 0.6 mile (1 km) away from the release site, as recommended by MDC. Our ability to conduct monitoring at specific distances and directions suggested by MDC is tempered by access to lands off of Wah'kon-tah Prairie, the locations of the reintroduction transects, and the number of stations necessary for a statistically sound monitoring protocol.

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

(a) Whether the final 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 final rule will create inconsistencies with other Federal agencies' actions.

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

(d) Whether the final rule raises novel legal or policy issues.

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 601 et seq. ), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare, and make available for public comment, a regulatory flexibility analysis that describes the effect of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities. We are certifying that this rule will not have a significant economic effect on a substantial number of small entities. The following discussion explains our rationale.

The area that will be affected includes the release areas at Wah'kon-tah Prairie and adjacent areas into which ABBs may disperse, which over time could include sizable portions of the NEP. Because of the regulatory flexibility for Federal agency actions provided by the NEP designation and the exemption for incidental take in the special rule, we do not expect this rule to have significant effects on any activities within Federal, State, or private lands within the NEP. In regard to section 7(a)(2), the population is treated as proposed for listing, and Federal action agencies are not required to consult on their activities. Section 7(a)(4) requires Federal agencies to confer (rather than consult) with the Service on actions that are likely to jeopardize the continued existence of a proposed species. However, because the NEP is, by definition, not essential to the survival of the species, conferring will likely never be required for the ABB populations within the NEP area. Furthermore, the results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities. In addition, section 7(a)(1) requires Federal agencies to use their authorities to carry out programs to further the conservation of listed species, which would apply on any lands within the NEP area. As a result, and in accordance with these regulations, some modifications to proposed Federal actions within the NEP area may occur to benefit the ABB, but we do not expect projects to be halted or substantially modified as a result of these regulations.

This rule will broadly allow incidental take of the ABB within the NEP area. The regulations implementing the Act define “incidental take” as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity, such as agricultural activities and other rural development, camping, hiking, hunting, vehicle use of roads and highways, and other activities in the NEP area that are in accordance with Federal, Tribal, State, and local laws and regulations. Intentional take for purposes other than authorized data collection or recovery purposes is prohibited. Intentional take for research or recovery purposes will require a section 10(a)(1)(A) recovery permit under the Act.

The principal activities on private property near the NEP area are agriculture, rural development, and recreation. We believe the presence of the ABB will not affect the use of lands for these purposes because there will be no new or additional economic or regulatory restrictions imposed upon States, non-Federal entities, or members of the public due to the presence of the ABB, and Federal agencies will only have to comply with sections 7(a)(1) and 7(a)(4) of the Act in these areas. Therefore, this rulemaking is not expected to have any significant adverse impacts to activities on private lands within the NEP area.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) This rule will not “significantly or uniquely” affect small governments. We have determined and certify under 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. A Small Government Agency Plan is not required. As explained above, small governments will not be affected because the NEP designation will not place additional requirements on any city, county, or other local municipalities.

(b) This rule will not produce a Federal mandate of $100 million or greater in any year (i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act). This NEP designation for the ABB will not impose any additional management or protection requirements on the States or other entities.

In accordance with Executive Order 12630, the rule does not have significant takings implications. When populations of federally listed species are designated as NEPs, the Act's regulatory requirements regarding those populations are significantly reduced. This reduction of regulatory burden allows landowners to continue using their lands in ways that may adversely impact the ABB, but are otherwise lawful. For example, this rule will not prohibit the taking of ABBs in the NEP area when such take is incidental to an otherwise legal activity, such as agricultural activities and other rural development, camping, hiking, hunting, vehicle use of roads and highways, and other activities that are in accordance with Federal, State, Tribal, and local laws and regulations. Because of the substantial regulatory relief provided by the NEP designations, we do not believe the reestablishment of this species will conflict with existing or proposed human activities or hinder public use of lands within the NEP.

A takings implication assessment is not required because this rule (1) will not effectively compel a property owner to suffer a physical invasion of property and (2) will not deny all economically beneficial or productive use of the land or aquatic resources. This rule will substantially advance a legitimate government interest (conservation and recovery of a listed species) and will not present a barrier to all reasonable and expected beneficial use of private property.

In accordance with Executive Order 13132, we have considered whether this rule has significant Federalism effects and have determined that a federalism impact summary statement is not required. This rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. In keeping with Department of the Interior policy, we requested information from, and coordinated development of this rule with, the affected resource agencies in Missouri. Achieving the recovery goals for this species will contribute to its eventual delisting and its return to State management. No intrusion on State policy or administration is expected; roles or responsibilities of Federal or State governments will not change; and fiscal capacity will not be substantially directly affected. The special rule operates to maintain the existing relationship between the State and the Federal Government, and is being undertaken in coordination with the State of Missouri. Therefore, this rule does not have significant Federalism effects or implications to warrant the preparation of a federalism impact summary statement under the provisions of Executive Order 13132.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule will not unduly burden the judicial system and will meet the requirements of sections (3)(a) and (3)(b)(2) of the Order.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are no tribal lands affected by this rule.

Office of Management and Budget (OMB) regulations at 5 CFR part 1320, which implement provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ), require that Federal agencies obtain approval from OMB before collecting information from the public. This rule does not contain any new information collections that require approval. OMB has approved our collection of information associated with reporting the taking of experimental populations (50 CFR 17.84) and assigned control number 1018-0095. We may not collect or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

The reintroduction of native species into suitable habitat within their historical or established range is categorically excluded from NEPA documentation requirements consistent with 40 CFR 1508.4, 516 DM 2.3A, 516 DM 2 Appendix 1, and 516 DM 8 Appendix 1.4.

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, and use. Because this action is not a significant energy action, no Statement of Energy Effects is required.

A complete list of all references cited in this rule is available upon request at the Columbia, Missouri Ecological Services Office (see ADDRESSES ).

The primary authors of this rule are staff members of the Service's Columbia, Missouri Ecological Services Office (see ADDRESSES and FOR FURTHER INFORMATION CONTACT ).

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

Background

Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (Secretary), upon request, to allow for a period of not more than 5 years, the incidental, but not intentional, taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued. Alternatively, if the taking is limited to harassment, certain determinations are made and the authorization does not exceed one year, an IHA may be issued. Upon making a finding that an application for incidental take is adequate and complete, NMFS commences the incidental take authorization process by publishing in the Federal Register a notice of a receipt of an application for the implementation of regulations or a proposed IHA initiating a period for public review and comment.

An authorization for the incidental takings may be granted if NMFS finds that the taking during the period of the authorization will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth to achieve the least practicable adverse impact.

NMFS has defined “negligible impact” as: “* * * an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-36) modified the MMPA by removing the “small numbers” and “specified geographic region” limitations and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (section 3(18)(B) of the MMPA):

On November 6, 2009, NMFS received a letter from the U.S. Air Force requesting an authorization for the take of marine mammals incidental to NEODS training operations. These training operations are properly considered “military readiness activity” under the provisions of the NDAA. On January 15, 2010, NMFS published a notice of receipt (75 FR 2490) in the Federal Register for the U.S. Air Force's NEODS training operations and determined that its application was adequate and complete. The Federal Register notice solicited comments from the public. After the close of the public comment period and review of comments, NMFS, on October 1, 2010, NMFS published a proposed rule (75 FR 60694) in the Federal Register to authorize the take of marine mammals pursuant to the U.S. Air Force's NEODS training operations and solicited public comments. On November 30, 2010, NMFS received a revised application from the U.S. Air Force which addressed public comments received during the comment period for the proposed rule. This application re-estimated the Zones of Influence (ZOI) and associated takes on revised thresholds for Level A and Level B harassment. On December 5, 2011, NMFS received a revised application from Eglin AFB with revised monitoring and mitigation measures to reduce the potential for lethal take of bottlenose dolphins, in response to an event involving the mortality of common dolphins associated with similar explosive training operations at the U.S. Navy's Silver Strand Training Complex near San Diego, California.

The U.S. Air Force states and NMFS concurs that underwater explosive detonations could result in the take by harassment of marine mammals by exposing them to sound. The requested regulations would establish a framework for authorizing incidental take with one or more future LOAs over a period not to exceed five years. These LOAs, if approved, would authorize the take, by Level B (behavioral) harassment, of Atlantic bottlenose dolphins ( Tursiops truncatus ) incidental to conducting NEODS training operations and testing at Eglin Gulf Test and Training Range (EGTTR) at property off Santa Rosa Island (SRI), Florida, in the northern Gulf of Mexico (GOM). Based on the application, estimated take, without considering mitigation effectiveness, would average approximately 10 animals per year; approximately 50 animals over the five year period. NMFS issued annual IHAs pursuant to section 101(a)(5)(D) of the MMPA for almost identical activities in 2005 (70 FR 51341; August 30, 2005), 2006 (71 FR 60639; October 16, 2006), 2007 (72 FR 58290; October 15, 2007), and 2008 (73 FR 56800; September 30, 2008). No missions have occurred under previous IHAs because of a separate concern about the safety of demolition charges being transported under a bridge. NEODS missions would involve underwater detonations of small, live explosive charges adjacent to inert mines. The U.S. Air Force states that underwater detonation of the specified explosive charges may expose bottlenose dolphins in the area to noise and pressure resulting in non-injurious temporary threshold shift (TTS) (temporary hearing loss).

Additional information on the NEODS training operations is contained in the application, which is available upon request (see ADDRESSES ).

The EGTTR encompasses approximately 222,739 km 2 (86,000 mi 2 ) within the GOM and consists of the airspace over the GOM, which is scheduled and operated by Eglin AFB. Potential impacts to marine mammals from NEODS testing are expected to occur at the NEODS test areas of Eglin AFB shown in Figure 1-1 of Eglin AFB's application, which are located approximately three nautical miles (nmi) from shore, in approximately 18.3 m (60 ft) of water and in area W-151 of the EGTTR.

The mission of NEODS is to detect, recover, identify, evaluate, render safe, and dispose of unexploded ordnance (UXO) that constitutes a threat to people, material, installations, ships, aircraft, and operations. The U.S. Navy EOD force of approximately 1,000 personnel has the equipment, mobility, and flexibility to tackle the global spectrum of threats in all world environments. Mine Countermeasures (MCM) detonations is one function of the U.S. Navy EOD force, which involves mine-hunting and mine-clearance operations. The NEODS facilities are located at Eglin AFB, Florida. The training at Eglin AFB involves focused training on basic EOD skills. Examples of these fundamental skills are recognizing ordnance, reconnaissance, measurement, basic understanding of demolition charges, and neutralization of conventional and chemical ordnance.

The NEODS at Eglin AFB plan to use the GOM waters off of SRI for a portion of the NEODS class. The NEODS would utilize areas approximately one to three nmi offshore of Test Site A-15, A-10 or A-3 for MCM training (see Figure 1-1 of Eglin AFB's application). A “test site” is a specific location on EGTTR where the mission activities actually occur. The goal of the training is to give NEODS students the tools and techniques to implement MCM and for neutralizing mines by diving and hand-placing charges adjacent to the mines through real scenarios. The students would be taught established techniques for neutralizing mines by diving and hand-placing charges adjacent to the mines. The detonation of small, live explosive charges adjacent to the mine disables the mine function. Inert mines are utilized for training purposes. This training would occur offshore of SRI up to eight times annually, at varying times within the year.

MCM training classes are 51 days in duration, with four days of on-site training in the GOM. Two of these four days will be utilized to lay the inert mines prior to the training. The other two days will require the use of live detonations in the GOM. One large safety vessel and five MK V inflatable 3.1 m (10 ft) rubber boats with 50 horsepower (HP) engines would be used to access the GOM waters during training activities. The training procedures during the two “live demolition” days are described as follows.

First Live Demolition Day: Five inert mines will be placed in a compact area on the GOM floor in approximately 60 ft of water. These five mines will be utilized for the one or two live demolition days. Divers will locate the mines by hand-held sonars (AN/PQS-2A acoustic locator and the Dukane Underwater Acoustic Locator System), which detect the mine casings (mine shape reacquisition). The hand-held sonar has been evaluated by the U.S. Navy and the sound source levels and sonar frequency ranges are below the threshold considered Level B harassment for marine mammals for sonar use (see Table 1-1 of Eglin AFB's application). Approximately 50,000 hrs of use would be required to affect one dolphin. It is expected that maximum sonar use associated with NEODS operations will be approximately 300 hrs annually. Therefore, potential noise impacts from sonar use are not included in this analysis.

Five charges packed with C-4 explosive material (either 2.3 kg or 5 pound [lb] net explosive weight [NEW] or 4.6 kg [10 lb] NEW) will be set up adjacent to the mines. A charge includes detonation cord, non-electric caps, time fuses and fuse igniters. No more than five charges will be utilized over the 2-day period. Live training events will occur eight times annually, averaging once every six to seven weeks. Four of the training events will involve 5-lb charges, and four events will involve 10-lb charges. Because five detonations (maximum) are expected during each event, there will be up to twenty 5-lb detonations and twenty ten-lb detonations annually, for a total of 40 detonations.

NMFS and the U.S. Air Force expect that 60 percent of the training events will occur in summer, and 40 percent will occur in winter, and analyses of potential marine mammal impacts in Section 6 of Eglin AFB's application reflect this seasonal distribution. Overpressure from the detonation is intended to disrupt the electrical charge on the mine, rendering it safe. The five charges will be detonated individually with a maximum separation time of 20 minutes between each detonation. The time of detonation will be limited to an hour after sunrise and an hour before sunset. Mine shapes and debris will be recovered and removed from the GOM waters when training is completed.

Second Live Demolition Day: Each team has two days to complete their entire evolution (detonation of five charges). The second day will be utilized only for teams not completing their evolution on day one.

Table 1—(Table 1-1 of the Application) Hand-Held Sonar Characteristics   AN/PQS-2A Dukane Operating Frequency 115 kHz to 145 kHz 37.5 kHz +/− 1 kHz. Sound Pressure Level 178.5 dB re 1 μPa @ 1m 157 to 160.5 dB re 1 μPa @ 1m.

The AN/PQS-2A sonar system produces a non-continuous audible tone in the diver's headset when a target is located. The AN/PQS-2A sonar's frequency range is within the hearing range of Atlantic bottlenose dolphins. The U.S. Navy evaluated the use of AN/PQS-2A sonar (in addition to many other types of sonar systems) in a 2009 Environmental Impact Statement for activities in the Panama City, Florida area. Using a bottlenose dolphin density of 0.81 animals/km 2 , it would require approximately 50,000 hrs of use to reach a take level of 0.5 animals. As a point of comparison, if the AN/PQS-2A sonar was in use for 12 hrs per day on every day of training in the GOM, the total number of hrs of use would be 384 annually. Eglin AFB considers that there would be no impacts to bottlenose dolphins from AN/PQS-2A sonar use.

Additional details regarding the NEODS training operations can be found in Eglin AFB's LOA application and NMFS' Environmental Assessment on the Promulgation of Regulations and the Issuance of Letters of Authorization to Take Marine Mammals, by Level B Harassment, Incidental to Naval Explosive Ordnance Disposal School Training Operations at Eglin Air Force Base, Florida (EA). The EA can also be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

NEODS supports the Naval Fleet by providing training to personnel from all four armed services, civil officials, and military students from over 70 countries. The NEODS facility supports the Department of Defense Joint Service Explosive Ordnance Disposal training mission. According to the application, the U.S. Navy and the U.S. Marine Corps believe that the ability of personnel to detect, characterize, and neutralize mines from their operating areas at sea, on the shore, and inland, is vital to their doctrines.

As the U.S. Air Force notes in its application, the U.S. Navy believes that an array of trans-national, rogue, and sub-national adversaries now pose the most immediate threat to American interests. Because of their relative low cost and ease of use, mines will be among the adversaries' weapons of choice in shallow-water situations, and they will be deployed in an asymmetrical and asynchronous manner. The U.S. Navy needs organic means to clear mines and obstacles rapidly in three challenging environments: Shallow water; the surf zone; and the beach zone. The U.S. Navy also needs a capability for rapid clandestine surveillance and reconnaissance of minefields and obstacles in these environments. The U.S. Air Force has determined and NMFS concurs that the NEODS mission in the GOM offshore of Eglin AFB is a military readiness activity for purposes of the MMPA as amended by the National Defense Authorization Act for Fiscal Year 2004 (NDAA, Pub. L. 108-236 referencing the definition in section 315 (f) of Pub. L. 107-314).

NEODS missions will occur over the next five years utilizing resources within the Eglin Military Complex, including three sites in the EGTTR (Figure 1-1 of Eglin AFB's application). There will be eight training events annually, with an average of one event occurring every six to seven weeks. Half of the events will involve 5-lb charges and half will involve 10-lb charges.

Area W-151: The inshore and offshore boundaries of W-151 are roughly parallel to the shoreline contour. The shoreward boundary is 3 nmi from shore, while the seaward boundary extends approximately 85 to 100 nmi offshore, depending on the specific location. W-151 covers a surface area of approximately 35,145 km 2 (10,247 nmi 2 ), and includes water depths ranging from approximately 35 to 700 m (114.8 to 2,296.6 ft). This range of depth includes continental shelf and slope waters. Approximately half of W-151 lies over the shelf. Latitude/Longitude of corners of W-151:

• 30.24006° North, −86.808838° West.

• 29.539011° North, −84.995536° West.

• 28.03949° North, −85.000147° West.

• 28.027598° North, −85.199395° West.

• 28.505304° North, −86.799043° West.

Area W-151A: W-151-A extends approximately 60 nmi offshore and has a surface area of 8,797 km 2 (2,565 nmi 2 ). Water depths range from approximately 35 to 350 m (114.8 to 1,148.3 ft) and include continental shelf and slope zones. However, most of W-151A occurs over the continental shelf, in water depths less than 250 m (820.2 ft). Latitude/Longitude of four corners of W-151A:

• 30.24006° North, −86.808838° West.

• 30.07499° North, −85.999327° West.

• 29.179968° North, −85.996341° West.

• 29.384439° North, −86.802579° West.

Marine mammal species that potentially occur within the EGTTR include several species of cetaceans and one sirenian, the West Indian manatee (see Table 1 below). The marine mammals that generally occur in the training operations area belong to three taxonomic groups: Mysticetes (baleen whales), odontocetes (toothed whales and dolphins), and sirenians (the manatee). Marine mammal species listed as Endangered under the U.S. Endangered Species Act (ESA), include the humpback, sei, fin, blue, North Atlantic right, sperm whale, and Florida manatee. Table 2 below outlines the marine mammal species, their habitat in the region of the project area, and their ESA and MMPA conservation status.

During winter months, manatee distribution in the GOM is generally confined to southern Florida. During summer months, a few may migrate north as far as Louisiana. However, manatees primarily inhabit coastal and inshore waters and rarely venture offshore. NEODS missions would be conducted one to three nmi from shore. Therefore, effects on manatees are considered very unlikely, and the discussion of marine mammal species is confined to cetaceans. The primarily cetacean occurring in the NEODS area of interest, EGTTR sub-area 197 (Figure 3-1 of Eglin AFB's application), is the Atlantic bottlenose dolphin and this analysis will focus on that species.

The three species of marine mammals that are known to commonly occur in close proximity to the NEODS training area of the GOM are the West Indian (Florida) manatee, Atlantic spotted dolphin, and Atlantic bottlenose dolphin.

The West Indian manatee in Florida and U.S. waters is listed as Endangered under the Endangered Species Act (ESA). They primarily inhabit coastal and inshore waters. Because the Florida manatee is managed under the jurisdiction of the U.S. Fish and Wildlife Service (USFWS) it is not considered further in this analysis.

The Atlantic spotted dolphin is endemic to the Atlantic Ocean in temperate to tropical waters (Perrin et al., 1987, 1994). In the GOM, Atlantic spotted dolphins occur primarily from continental shelf waters 10 to 200 m (33 to 656 ft) deep to slope waters greater than 500 m (1,640 ft) deep (Fulling et al., 2003; Mullin and Fulling, 2004). Atlantic spotted dolphins were seen in all seasons during GulfCet aerial surveys of the northern GOM from 1992 to 1998 (Hansen et al., 1996; Mullin and Hoggard, 2000). It has been suggested that this species may move inshore seasonally during spring, but data supporting this hypothesis are limited (Caldwell and Caldwell, 1966; Fritts et al., 1983).

Eglin AFB has included Atlantic spotted dolphins in previous requests for IHAs to be conservative, although their occurrence is considered unlikely. The stock assessment reports for the northern GOM describes the shoreward range of Atlantic spotted dolphins as 10 m (33 ft) depth. NEODS activities can occur from one to three miles offshore. Maximum water depth of the activities is 18.3 m (60 ft), but they often train in approximately 9.1 m (30 ft) of water, so this species range occurs at the very edge of the activities. Therefore, the chance of impacting Atlantic spotted dolphins is remote, especially given the monitoring and mitigation measures described below.

The marine mammal species most likely to be affected by the NEODS training operations is the Atlantic bottlenose dolphin. Atlantic bottlenose dolphins are distributed worldwide in tropical and temperate waters. Atlantic bottlenose dolphins occur in slope, shelf, and inshore waters of the entire GOM, and their diet consists mainly of fish, crabs, squid, and shrimp (Caldwell and Caldwell, 1983). In addition, a coastal and an offshore form of the bottlenose dolphin have been suggested. Baumgartner et al. (2001) suggest a bimodal distribution in the northern GOM, with a shelf population occurring out to the 150 m (492 ft) isobath and a shelf break population out to the 750 m (2,460.6 ft) isobath. Occurrence in water with depth greater than 1,000 m (3,280.8 ft) is not considered likely and is not applicable to this assessment. Migratory patterns from inshore to offshore are likely associated with the movements of prey rather than a preference for a particular habitat characteristic (such as surface water temperature) (Ridgeway, 1972; Irving, 1973; Jefferson et al., 1992).

Based on a combination of geography, ecological, and genetic research, Atlantic bottlenose dolphins have been divided into many separate stocks within the GOM. Within the EGTTR, there are four defined stocks of bottlenose dolphins: The Northern GOM Oceanic Stock, the Northern GOM Continental Shelf Stock, the Eastern GOM Coastal Stock, and the Northern GOM Coastal Stock. In addition, there are 33 stocks of bottlenose dolphins inhabiting the bays, sounds, and estuaries along the GOM coast (Waring et al., 2007). NEODS training operations occur offshore of Eglin AFB's SRI property in water depths of approximately 60 ft. This location most closely coincides with the defined boundary of the Northern GOM Coastal Stock, which is considered to occur from the GOM shoreline to the 20 m (65.6 ft) isobath. However, individuals from the Northern GOM Bay, Sound, and Estuarine Stocks may also potentially enter the training areas, as movement between various communities has been documented (see Waring et al., 2009).

NEODS training operations occur geographically between the Pensacola/East Bay and Choctawhatchee Bay stocks, although individuals from other locations could potentially travel through the training areas as well. The Northern GOM coastal stocks and all bay, sound, and estuarine stocks are designated as strategic under the MMPA. Strategic stocks are defined by the MMPA as a marine mammal stock for which the level of direct human-caused mortality exceeds the potential biological removal level; which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the ESA within the foreseeable future; or which is listed as a threatened or endangered species under the ESA, or is designated as depleted under the MMPA. For the coastal stocks, total human-caused mortality and serious injury for each stock is not known and there is insufficient information available to determine whether the total fishery-related mortality and serious injury for each stock is insignificant and approaching zero mortality and serious injury rate. Because for each stock the stock size is currently unknown and potential biological removal (PBR) undetermined, and because there are documented cases of human-related mortality from a number of sources, each stock is a strategic stock. For the bay, sound, and estuarine stocks, human-caused mortality and serious injury for each of these stocks is not known, but considering the evidence from stranding data, the total fishery-related mortality and serious injury exceeds 10 percent of the total known PBR or previous PBR, and, therefore, it is probably not insignificant and approaching the zero mortality and serious injury rate. Because most of the stock sizes are currently unknown, but likely relatively few mortalities and serious injuries would exceed PBR, NMFS considers that each of these stocks is a strategic stock (NMFS, 2009).

Prior to the 2007 Garrison survey and model predictions, the best estimates of Northern GOM Atlantic bottlenose dolphin abundance were 7 to 15 years old, occurred during different seasons, and each of the surveys suffered from differing degrees of negative bias in abundance estimates because all surveys assumed that all animals on the trackline were seen. Therefore, estimates based on those surveys would be highly uncertain. Based on data from the Protected Species Habitat Modeling in the EGTTR, the total estimate of abundance of bottlenose dolphins from the winter 2007 survey was 65,861 (95 percent CI 36,699 to 118,200) and for the summer 2007 survey was 11,433 animals (95 percent CI 7,346 to 17,793) (Garrison, 2008). For the summer and winter surveys, the highest density of bottlenose dolphins occurred in the northern inshore stratum. The summer survey overall abundance estimate for bottlenose dolphins was approximately 50 percent lower than the winter survey (Garrison, 2008). Bottlenose dolphin stocks for the shelf edge and slope are not considered strategic. The PBR for shelf and slope stocks is 45 dolphins (Waring et al., 2001). The exact structure of these stocks is complex and continues to be revised as research is completed.

The presence of fish in the stomachs of some individual offshore bottlenose dolphins suggest that they dive to depths of more than 500 m (1,640 ft). A tagged individual near Bermuda had maximum recorded dives of 600 to 700 m (1,969 to 2,297 ft) and durations of 11 to 12 minutes. Dive durations up to 15 minutes have been recorded for trained individuals. Typical dives, however, are more shallow and of a much shorter duration. Data from a tagged individual off Bermuda indicated a possible diel dive cycle (i.e., a regular daily dive cycle) in search of mesopelagic (living at depths between 180 and 900 m [591 and 2,953 ft]) prey in the deep scattering layer.

In the EGTTR as a whole, there were a total of 281 groups of bottlenose dolphins during the winter survey and 162 groups during the summer survey. According to the species-habitat model for bottlenose dolphins, densities were predicted to be highest in relatively shallow water, with an offshore peak in density between 40 to 60 m (131 to 196.9 ft) depth and in waters ranging between 27.5 to 28.5 °C (81.5 to 83.3 °F) (Garrison, 2008).

Bottlenose dolphin density estimates for the study area are derived from Protected Species Habitat Modeling in the EGTTR (Garrison, 2008). NMFS developed habitat models using new aerial survey line transect data collected during the winter and summer of 2007. The winter survey was conducted primarily during the month of February (water temperatures of 12 to 15 °C [53.6 to 59 °F]) while the summer survey was primarily during July (water temperatures >26 °C [78.8 °F]). In combination with remotely sensed habitat parameters (sea surface temperature and chlorophyll), these data were used to develop spatial density models for bottlenose dolphins within the continental shelf and coastal waters of the eastern GOM. Encounter rates during the aerial surveys were corrected for sighting probabilities and the probability that animals were available to be seen on the surface. The models predict the absolute density of bottlenose dolphins within the EGTTR. Given that the survey area (EGTTR sub-area 197, Figure 3-1 of Eglin AFB's application) completely overlaps the NEODS mission area and that this data is currently the best available survey data, these models best reflect the occurrence of bottlenose dolphins within the EGTTR. Most, but not all, of the NEODS mission area is contained within EGTTR subarea 197 (see Figure 3-1 of Eglin AFB's application). The two westernmost test areas lie within subarea 197, but the easternmost one does not. Dolphin density is not available for the area directly east of subarea 197. However, the physical and biological parameters used to develop density estimates in this subarea likely do not differ significantly between the training areas. The density estimate for subarea 197 is therefore considered the best currently available and is applied to all locations of NEODS training operations.

Table 3-1 of Eglin AFB's application provides median and adjusted bottlenose dolphin densities in EGTTR sub-area 197. These absolute estimates of density (animals per square kilometer [km 2 ] were produced by combining the spatial density model, sighting probability, and availability model (Garrison, 2008). All environmental terms were retained in the species-habitat model for the winter survey and the summer survey with the exception of glare for the summer survey. The model fits for the winter and summer were highly significant, explained a significant portion of the variability in the data, and resulted in effective predictions of spatial distribution of bottlenose dolphins.

NEODS missions may be executed at any time during the year. It is anticipated that approximately 60 percent of missions will be executed during summer months, and 40 percent will be executed during winter months. Separate summer and winter density estimates are provided in Table 3-1 of Eglin AFB's application. Months with high CV values (greater than 1) have high degrees of uncertainty in the model predictions. These months include May, June, September, October, and November where density was unknown. In order to compensate for the months without good estimates, interpolation was used between the available months by providing a means of estimating the function at intermediate points through presuming that there were linear seasonal trends. Interpolation assumes that the poorly estimated periods lie somewhere in the middle of the well estimated periods. Adjusted densities for each month were reached after interpolation calculations (see Table 3-1 of Eglin AFB's application). Based on the adjusted densities, January, March, and July have the highest bottlenose dolphin densities while the months from August through December months have the lowest densities. On average, there are 0.81 bottlenose dolphins/km 2 throughout the year in EGTTR sub-area 197. Seasonally there are on average 0.84 dolphins/km 2 during summer and 0.78 dolphins/km 2 during winter in sub-area 197. NMFS has independently evaluated the foregoing approach for calculating the likely occurrence and density of bottlenose dolphins in the specified geographic area and determined that it yields the best scientific data available for purposes of determining the extent of impacts to affected stocks, the likely amount of incidental harassment, and informing the negligible impact determination.

NMFS anticipates that no bottlenose dolphins will be injured, seriously injured, or killed during the NEODS training operations. The specific objective of the U.S. Air Force's mitigation and monitoring plan is to ensure that no dolphins (or manatees) or other protected species are in the action area where they might be impacted by the explosive detonations. Because of the circumstances and the mitigation and monitoring requirements discussed in this document, NMFS believes it highly unlikely that the activities would result in injury (Level A harassment), serious injury, or mortality of bottlenose dolphins; however, they may temporarily avoid the area where the explosive demolitions will occur (after there has been at least one detonation). Eglin AFB has requested the incidental take of 10 bottlenose dolphin each year and approximately 50 animals during the five year duration of the action.

Further information on the biology, habitat, and local distribution of these species and others in the region can be found in Eglin AFB's application, which is available upon request (see ADDRESSES ), and the NMFS Marine Mammal Stock Assessment Reports, which are available online at: http://www.nmfs.noaa.gov/pr/species/ .

On January 15, 2010, NMFS published a notice of receipt of application for a LOA in the Federal Register (75 FR 2490) and requested comments, information, and suggestions from the public for 30 days. NMFS received comments from the Marine Mammal Commission (Commission) and a private citizen. The private citizen's comments opposed the issuance of an authorization without providing any specific rationale for that position. NMFS, therefore, cannot respond to this comment. NMFS' responses to the Commission's comments are addressed in the proposed rule (75 FR 60694, October 1, 2010). On October 1, 2010, NMFS published a Notice of Proposed Rule (75 FR 60694) on the U.S. Air Force's request to take marine mammals incidental to NEODS training operations at Eglin AFB and requested, comments, information, and suggestions concerning the request. During the 30-day public comment period for the proposed rule, NMFS received comments from two private citizens and the Commission. The following are the comments and NMFS' responses.

Comment 1: A comment from a private citizen does not support giving this permit to Eglin AFB because marine mammals “deserve to live, not be bombed to death or have sonar cause brain hemorrhages so that they can't navigate and die from blood hemorrhages.”

Response: Eglin AFB and NMFS have evaluated the potential harm to marine mammals resulting from NEODS activities using the best currently available science. It is possible that bottlenose dolphins may be affected by underwater detonations. However, as discussed in the proposed rule, these effects will most likely be in the form of temporary behavioral disturbance, not injury or death. NMFS is requiring monitoring and mitigation measures to be implemented during all missions, and expects that these measures will significantly decrease the potential for impacts and reduce likely incidental harassment to a level that does not exceed negligible impact as defined by 50 CFR 216.103. The hand-held sonar used during NEODS activities are not likely to affect marine mammals. Due to the location of the NEODS training operations and required pre-mission monitoring, it is highly unlikely that manatees will be affected. In addition, section 101(a)(5)(A) of the MMPA requires that the Secretary to issue the requested authorization to the U.S. Air Force only if the Secretary determines that the NEODS training operations will result in a negligible impact on the affected species or stocks, and the authorization prescribes the permissible methods of taking, mitigation measures for effecting the least practicable adverse impact to species or stocks, and requirements for monitoring and reporting.

Comment 2: A comment from a private citizen states that the proposed rule is an immediate threat to bottlenose dolphins and even manatees in the coastal waters surrounding Florida. The suggestion that Level B harassment to marine species is acceptable in order for Naval students to arm/disarm underwater mines is negligent and extreme, especially when our oceans are facing rapid change in temperature, over-fishing, and toxic waste.

Moreover, the Sarasota Dolphin Research Agency states “evaluating the effects of * * * noise on marine mammals [in order to] expand understanding of * * * threats to bottlenose dolphins * * * observations made during * * * detonation * * * indicated that dolphins do exhibit behavioral responses” (Buckstaff and Ganon, 2010; http://www.sarasotadolphin.org/Human/ResponseConstruction.asp ). Essentially, not enough research has been conducted on long term outcome of sound and noise on bottlenose dolphins (or other marine life), and blatant disregard for marine environments is an abuse of the Naval authority.

The commenter challenges the rule in its entirety, and requests the U.S. Navy find other manners in which to test the student aptitude of arming/disarming underwater mines. Ordnance training can occur in simulated marine environments without posing needless harm to the animals and ecosystems of coastal waters.

Response: The NEODS training operations are necessary to train U.S. Navy personnel to detect, recover, identify, evaluate, render safe, and dispose of unexploded ordnance that constitutes a threat to people, material, installations, ships, aircraft, and operations. Although most NEODS components of the training operations are conducted on land and in controlled environments, the training described in this application is carried out in real-world conditions in order to make the training as effective as reasonably possible. Simulated environments (e.g., pools) generally do not effectively represent open-ocean conditions.

While better understanding the effects of underwater noise on marine species is an important goal, Eglin AFB and NMFS has evaluated the potential harm to marine mammals resulting from NEODS activities using the best currently available science. While bottlenose dolphins may be affected by underwater detonations, because of the infrequency and short duration of the detonations these impacts are expected to be minimal. Additionally, the U.S. Air Force and NMFS will require monitoring and mitigation measures to be implemented during all NEODS missions, and expects that these measures will result in the lowest practicable adverse impact on marine mammal species and stocks and reduce likely incidental harassment to a level that does not exceed a negligible impact as defined by 50 CFR 216.103. Due to the location of NEODS training operations and required pre-mission monitoring, it is highly unlikely that manatees will be affected.

Comment 3: The Commission recommends that the NMFS require the U.S. Air Force to describe in detail the environmental parameters and procedures used to determine the safety zones and subsequent takes and incorporate these in the final rule.

Response: Before issuing the final rule, NMFS required the U.S. Air Force to describe in detail the environmental parameters and procedures used to determine safety zones (i.e. ZOIs) and subsequent takes. Underwater noise propagation, and therefore the distance to which noise thresholds are estimated to extend, depends upon a number of environmental parameters. For estimating threshold distances in the U.S. Air Force's MMPA application for NEODS training operations, Eglin AFB used a proprietary application developed by a contractor, Science Applications International Corporation. The application permits users to input data related to underwater explosions into an Excel spreadsheet, including net explosive weight, number of detonations, and the desired noise threshold metrics. The possible metrics include energy expressed as decibel levels (total energy and/or greatest 1/3 octave band), peak pressure (psi), and positive impulse (psi-msec). The program output then displays the distance from source to which a particular threshold extends. Various threshold distances are provided according to depth of detonation, season (summer or winter), and province number.

The Warning Areas most frequently used for military testing and training exercises in the Gulf of Mexico (W-155, W-151, and W-470) have been divided into 16 acoustic provinces derived from U.S. Navy oceanographic and environmental databases. Within a given province, water depth, sound speed, and sediment properties are similar, and therefore acoustic properties are expected to be similar. NEODS training operations will occur in W-151. The relevant oceanographic and environmental data was entered into the spreadsheet, and noise threshold distances corresponding to the appropriate depth, season, and province number were provided and used to populate Table 6-2 in Eglin AFB's application. NMFS has included these environmental parameters and procedures used to determine the safety zones (i.e., ZOIs) and subsequent takes and incorporated these in the final rule.

Comment 4: The Commission recommends that before issuing the final rule, NMFS require the U.S. Air Force to re-estimate the safety zones and associated takes based on the Level A harassment (injury) threshold of 13 psi-msec and the Level B harassment (non-TTS) threshold of 177 dB re 1 μPa 2 -sec.

Response: Before issuing the final rule, NMFS has required and Eglin AFB Natural Resources Section has re-estimated the safety zones and associated incidental takes so that they include 13psi-msec (Level A harassment) and 177 dB re 1 μPa 2 -sec (Level B harassment) thresholds. Revisions were made in the application accordingly and are also reflected in NMFS' take estimates and final rule, and will be in subsequent authorizations. The application is available online on the NMFS Incidental Take Authorization Web site at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#iha . NMFS has relied on those revisions in establishing safety zones in the final rule.

Comment 5: The Commission recommends that before issuing the final rule, NMFS provide additional justification for its preliminary determination that the mitigation and monitoring measures would be sufficient to detect, with a high level of confidence, all marine mammals within or entering the identified safety zones; this would include describing changes in detection probability under various sea state and weather conditions. If such information is not available, then NMFS and the U.S. Air Force should undertake the studies needed to verify that the proposed mitigation and monitoring measures are likely to detect all or nearly all marine mammals in or near the safety zones and, if necessary, develop alternative means of detecting marine mammals in or near those zones. As it has noted in past correspondence, the Commission would be pleased to discuss with NMFS and the U.S. Air Force the collection and analysis of such data and the design of such experiments to promote a better understanding of the utility and shortcomings of visual monitoring as an effective mitigation measure.

Response: The probability of sighting bottlenose dolphins within the monitoring zone is affected by animal behavior, observer effectiveness, and weather/Beaufort sea state and wind force. Species that occur in groups, exhibit conspicuous surface activity (e.g., leaping, splashing, and visible blows), and surface often are more likely to be observed than species for which one or more of these attributes is not applicable. Bottlenose dolphin behavior is considered conducive to effective observation. The typical group size of 2 to 15 individuals (DON, 2007a; Wursig et al., 2000) is expected to occur in the area of NEODS training operations. Although dives of 10 to 15 minutes have been recorded for trained individuals, the typical dive time is 3 to 4 minutes (Wynne and Schwartz, 1999). Observation for dolphins will occur at least 30 minutes before detonations occur. Therefore, it is likely that at least one individual will be at the surface during the observation time frame. In addition, bottlenose dolphins are generally surface-active and, due to dive times, surface relatively frequently. Caretta et al. (2000) considered the likelihood of bottlenose dolphins being observed during surveys in the Pacific great enough that the possibility of missed individuals on the transect line was discounted.

Eglin AFB will require the use of trained observers during NEODS training operations involving detonations. Due in part to the dolphin behavioral characteristics and mission requirements described above, it is expected that observers will have a high detection rate in acceptable weather conditions. A Beaufort sea state of less than 3 is considered optimal for cetacean observation (Davis et al., 2000), and mitigation measures stipulate that missions will be delayed if sea state is greater than 3. Detection probability generally decreases with distance from the observer. However NMFS expects that observation effectiveness will be acceptable within the specified range (880 m maximum or 2,887 ft).

Specific information on the probability of observing bottlenose dolphins from a stationary platform in the nearshore GOM is not available. Various authors have generally addressed the issue of observation effectiveness during cetacean surveys. Two types of bias are often discussed in this context, including perception and availability bias. Perception bias refers to the failure of observers to detect animals, although they are present in the survey area and available to be seen. Availability bias refers to animals that are in the survey area, but are not able to be seen because they are submerged when observers are present. The probability of detecting bottlenose dolphins on a transect line during shipboard surveys has been estimated by various authors as between 62 and 100 percent (DON, 2007b). These probabilities take into account perception and availability bias. However, these estimates are not necessarily applicable to NEODS operations because they represent results from survey efforts on moving vessels (NEODS observers will be stationary) and occur in different geographic locations.

Comment 6: The Commission recommends that NMFS condition the final rule and any LOA issued under that rule to require suspension of the proposed activities if a marine mammal is seriously injured or killed and the injury or death could be associated with the proposed activities and, if supplementary measures are unlikely to reduce the risk of serious injury or death to a very low level, require the U.S. Air Force to suspend its activities until an authorization for such taking has been obtained.

Response: Although Eglin AFB Natural Resources Section believes the required monitoring and mitigation measures will substantially reduce the potential for impacts to bottlenose dolphins, the U.S. Air Force is willing to require that NEODS activities be suspended if a marine mammal is seriously injured or killed and the injury or death can be associated by the U.S. Air Force with the NEODS operations. In addition, Eglin AFB agrees that, if supplementary measures are unlikely to reduce the risk of serious injury or death to a very low level, activities should be suspended until an authorization for such take has been obtained. This requirement has been added to the application under the Mitigation Procedures Plan and NMFS has included it as a requirement in the final rule.

Comment 7: In exchanged emails, the Commission and NMFS noted discrepancies within both the application and NMFS' proposed rule. In response, the U.S. Air Force made several clarifications and agreed to work with NMFS to correct the other discrepancies, including determining safety zones and estimated takes associated with Level B harassment (non-TTS) for multiple detonations. The Commission recommends that NMFS ensure that numerous discrepancies in the application and proposed rule are corrected in the final rule.

Response: Eglin AFB has addressed all issues noted in the Commission's comments submitted via email as well as those officially submitted during the public comment period for the proposed rule. NMFS has ensured that these discrepancies in the application and proposed rule are corrected in the final rule.

In general, potential impacts to marine mammals from explosive detonations could include non-lethal injury (Level A harassment), serious injury, and mortality, as well as Level B harassment, which can consist of behavioral disturbance or temporary loss of hearing sensitivity. In the absence of monitoring and mitigation, marine mammals may be killed or injured as a result of an explosive detonation due to direct physiological effects such as the response of air cavities in the body, including the lungs and bubbles in the intestines. Effects are likely to be most severe in near surface waters where the reflected shock wave creates a region of negative pressure called “cavitation.”

A second potential possible cause of mortality is the onset of extensive lung hemorrhage. Extensive lung hemorrhage is considered debilitating and potentially fatal. Suffocation caused by lung hemorrhage is likely to be the major cause of marine mammal death from underwater shock waves. The estimated range for the onset of extensive lung hemorrhage to marine mammals varies depending upon the animal's weight, with the smallest mammals having the greatest potential hazard range.

Marine mammals may potentially be harassed due to noise from NEODS mission involving underwater detonations. For example, exposing bottlenose dolphins to underwater noise from explosive detonations could result in disturbing important behavioral patterns. The potential numbers and species harassed by noise are assessed in this section. Three key sources of information are necessary for estimating potential noise effects on marine resources: (1) The number of distinct firing or test events; (2) the ZOI for noise exposure; and (3) the population density of animals that potentially occur within the ZOI. The ZOI reflects the geographic extent of the effects anticipated from the action. The “test site” and “mission area” are both found within the ZOI.

For the acoustic analysis, the exploding charge is characterized as a point source. The impact thresholds used for marine mammals relate to potential effects on hearing from underwater detonation noise. No ESA-listed marine mammals would be affected given the location of the action in nearshore waters. The only ESA-listed marine mammal likely to be found in the northeastern GOM, the Federal and state-listed endangered sperm whale ( Physeter macrocephalus ), occurs farther out on the continental slope in water generally deeper than 600 m (1,968.5 ft). Manatees are not considered likely to occur in the mission areas (see Figure 1-1 of Eglin AFB's application) and are therefore not considered in this analysis.

For the explosives in question, actual detonation depths would occur at 60 ft near the sand bottom. The inert mines and sea floor may potentially interact with the propagation of noise into the water. However, effects on the propagation of noise into the water column cannot be determined without in-water noise monitoring at the time of detonation. Potential exposure of a sensitive species to detonation noise could theoretically occur at the surface or at any number of depths with differing consequences. A conservative acoustic analysis was selected to ensure the greatest direct path for the harassment ranges and to give the greatest impact range for the injury thresholds.

Criteria and thresholds that are the basis of the analysis of NEODS noise impacts to cetaceans were initially used in U.S. Navy Environmental Impact Statements for ship shock trials of the Seawolf submarine and the Winston S. Churchill ( Churchill ) vessel (DON, 1998; DON, 2001) and adopted by NMFS (NMFS, 2001). Supplemental criteria and thresholds have been introduced in the EGTTR Programmatic Environmental Assessment (U.S. Air Force, 2002), subsequent EGTTR LOA (U.S. Air Force, 2003) permit request, Precision Strike Weapons (PSW) LOA (U.S. Air Force, 2004), and Naval Surface Warfare Center Panama City Division LOA (U.S. Navy, 2008).

Standard impulsive and acoustic metrics were used to analyze underwater pressure waves in this document.

• Energy flux density (EFD) is the time integral of the squared pressure divided by the impedance. EFD levels have units of dB re 1 μPa 2 ·s.

• 1/3-Octave EFD is the energy flux density in a 1/3-octave frequency band; the 1/3 octave selected is the hearing range at which the subject animals' hearing is believed to be most sensitive.

• Peak pressure is the maximum positive pressure for an arrival of a sound pressure wave that a marine mammal would receive at some distance away from a detonation.

• Positive impulse represents a time-averaged pressure disturbance from an explosive source with units in psi-milliseconds (psi-msec).

• Units used here are psi and dB levels.

Level A harassment is non-lethal injury, the onset of which is estimated based on levels associated with eardrum rupture (i.e., tympanic-membrane [TM] rupture) and the onset of slight lung injury. The threshold for TM rupture corresponds to a 50 percent rate of rupture (i.e., 50 percent of animals exposed to the level are expected to suffer TM rupture); this threshold is stated in terms of an EFD value of 1.17 in-lb/in 2 , which is about 205 dB re 1 μPa 2 ·s EFD. Use of this value acknowledges that TM rupture is not necessarily a life-threatening injury, but is a useful index of possible injury that is well-correlated with measures of permanent hearing impairment. Ketten (1998) indicates a 30 percent incidence of permanent threshold shift (PTS) at the same threshold. The onset of slight lung injury is the second threshold considered indicative of non-lethal injury. A dolphin would be expected to recover from this type of injury. Slight lung injury is considered to occur at a positive impulse level of 13 psi-msec. At distances closer to the detonation, the pressure wave could cause extensive lung injury, leading to mortality. It is assumed that the range of extensive lung injury is less than that of slight injury; therefore, using the range of slight lung injury provides a more conservative take estimate.

Public Law 108-136 (2004) amended the definition of Level B harassment under the MMPA for military readiness activities, such as this action (and also for scientific research on marine mammals conducted by or on the behalf of the Federal Government). For military readiness activities, Level B harassment is now defined as “any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering to a point where such behavioral patterns are abandoned or significantly altered.” Unlike Level A harassment, which is solely associated with physiological effects, both physiological and behavioral effects may cause Level B harassment.

The physiological effect associated with non-injurious Level B harassment is known as temporary threshold shift (TTS), which is defined as a temporary, recoverable loss of hearing sensitivity (NMFS, 2001; DON, 2001). Two criteria are considered indicative of the onset of peak pressure at 23 psi (peak). This threshold is derived from the Environmental Impact Statement for the ( Churchill ) shock testing and was subsequently adopted by NMFS in its final rule on the unintentional taking of marine mammals incidental to the shock testing (NMFS, 2001). The original criteria in Churchill incorporated 12 psi (peak). The current criteria and threshold for peak pressure over all exposures was updated from 12 psi (peak) to 23 psi (peak) for explosives less than 907 kg (2,000 lb) based on an IHA issued to the U.S. Air Force for a similar action (NMFS, 2006a). See Table 4 (below) for NMFS' current criteria and thresholds for explosives. Peak pressure threshold are much greater than those for the energy metric when charge weights are small, even when source and animal are away from the surface. In order to more accurately estimate TTS for smaller detonations while preserving the safety feature provided by the peak pressure threshold, the peak pressure threshold is appropriately scaled for small shot detonations. This scaling is based on the similitude formulas (e.g., Urick, 1983) used in virtually all compliance documents for short ranges. Further, the peak-pressure threshold for TTS due to explosives offers a safety margin for source or animal near the ocean surface. The more conservative isopleth of the criteria for estimating TTS is used in take analysis.

Behavioral reactions may occur at noise levels below those considered to cause TTS in marine mammals, particularly in cases where multiple detonations occur. Behavioral effects may include decreased ability to feed, communicate, migrate, or reproduce, among others. Such effects are known as sub-TTS Level B harassment. Although repetitive exposures (below TTS) to the same animals are considered unlikely due to the infrequent test events (no more than 5 detonations over a one or two day period), the potential variability in target locations, and the continuous movement of marine mammals in the northeastern GOM, the potential exists for a marine mammal to be impacted during multiple detonations. In this document, behavioral effects associated with such a scenario are considered to occur at an EFD level of 177 dB re 1 μPa 2 ·s EFD. The tables below provide a summary of threshold criteria and metrics for potential noise impacts to sensitive species.

Noise ZOIs were calculated for bottom detonation scenarios at 60 ft for both Level A harassment (i.e., injury) and Level B harassment (significant behavioral disturbance). To determine the number of potential “takes” or animals affected, cetacean population information from surveys was applied to the various ZOIs. The impact calculations for this section utilize marine mammal density estimates that have been derived from a Legacy-funded NMFS/Air Force project (Garrison, 2008). The species density estimate data were adjusted to reflect the best available data and more realistic encounters of these animals in their natural environment (Garrison, 2008). These calculations and estimates are explained in detail in Section 3, and adjusted density estimates are provided in Table 3-1 of Eglin AFB's application. Although mission schedules are variable and may occur during any time of year, 60 percent (24 detonations) are expected to occur during summer and 40 percent (16 detonations) are expected to occur in winter. Therefore, seasonal bottlenose dolphin density estimates (0.78 dolphins/km 2 ) in summer and 0.84 dolphins/km 2 in winter) are used for take analysis.

Table 6-2 of Eglin AFB's application gives the estimated impact ranges for the two explosive weights. The test locations are one to three nmi south of SRI. NEODS detonations were modeled for bottom detonations at 60 ft.

Applying the harassment ranges in Table 6-2 of the application to the species densities of Table 3-1 of the application, the number of animals potentially occurring within the ZOI was estimated. These results are presented in Tables 6-3, 6-4, and 6-5 of the application. For Level A harassment calculations (Table 6-3 of the application), the ZOI corresponding to 13 psi-msec is used because this radius is in all cases greater than the radius corresponding to 205 dB re 1 μPa 2 · s EFD. For Level B harassment calculations (Table 6-4 of the application), the ZOI corresponding to the 182 dB re 1 μPa 2 · s EFD metric is used because this radius is in all cases greater than the radius corresponding to 23 psi (peak). A whole animal (and potential take) is defined as 0.5 or greater, where calculation totals result in fractions of an animal. Where less than 0.5 animals are affected, no take is assumed. The calculations in Tables 6-3 and 6-4 of the application are based on the expected tempo of: (1) 40 total detonations per year; (2) one-half of detonations are of 5 lb charges, and one-half are of 10 lb charges; and (3) 60 percent of detonations occur in summer, and 40 percent occur in winter.

The tables above indicate that the potential takes of marine mammals for non-injurious (Level B) harassment, as well as the onset of injury (Level A harassment) to cetaceans is possible but low, even without implementing any monitoring and mitigation measures. Slightly fewer than four bottlenose dolphins are estimated to be exposed annually to a positive pressure level corresponding to Level A harassment (13 psi-msec). Noise levels corresponding to Level B harassment (182 dB re 1 μPa 2 · s EFD) would potentially affect approximately 10 dolphins. Finally, approximately 50 dolphins could be exposed to noise levels associated with sub-TTS behavioral harassment. None of the above impact estimates take into account the monitoring and mitigation measures that will be employed by the proponent to minimize potential impacts to protected species. These monitoring and mitigation measures are described in Eglin AFB's application (see below) and are anticipated to substantially reduce the potential impacts to marine mammals.

Based on the analyses and results provided here and in Section 6 of Eglin AFB's application, approximately four Atlantic bottlenose dolphins could be exposed to pressure levels (13 psi-msec) corresponding to Level A harassment annually in the absence of monitoring and mitigation measures. Approximately 10 dolphins could be exposed to noise levels corresponding to Level B harassment (TTS and associated behavioral), while 50 individuals could be exposed to noise levels corresponding to Level B harassment. NMFS expects that monitoring and mitigation measures set forth in the final rule would substantially reduce the number of animals impacted. The individuals potentially affected could be part of the Northern GOM Coastal Stock and/or part of one or more of the Northern GOM bay, sound, and estuarine stocks. The Northern GOM coastal stock and all bay, sound, and estuarine stocks are considered strategic. Although the NEODS training area lies outside the defined range of the bay, sound, and estuarine stocks, movement between such stocks has been documented in GOM coastal waters, as described in Waring et al. (2009). Movements have ranged from travel through adjacent communities to movement over several hundred kms off Texas, and may include seasonal movements into GOM waters. NEODS training operations will occur between the ranges of the Pensacola/East Bay and Choctawhatchee Bay Stocks, although individuals from other locations could potentially travel through the training areas as well. These stocks and their movements are not fully understood; therefore, it is possible that individuals from these stocks could be affected. PBR has not been determined for the coastal stock due to insufficient information. Similarly, PBR has not been determined for many of the bay, sound, and estuarine stocks, including the Pensacola/East Bay and Choctawhatchee Bay stocks.

Based on the calculation methods discussed above, NMFS estimated take numbers per year of 10 individuals and 50 individuals during the five-year rule for Atlantic bottlenose dolphins. The actual number of individual animals being exposed or taken may be less due to the U.S. Air Force's implementation of monitoring and mitigation measures.

The primary source of marine mammal habitat impact is noise resulting from live NEODS missions. However, the noise does not constitute a long-term physical alteration of the water column or bottom topography, as the occurrences are of limited duration and are intermittent in time. Surface vessels associated with the missions are present in limited duration and are intermittent as well.

Other sources that may affect marine mammal habitat were considered and potentially include the introduction of fuel, debris, ordnance, and chemical residues in the water column. The effects of each of these components were considered in the NEODS BA and were determined to be unlikely to adversely affect protected marine species. Marine mammal habitat would not be affected, lost or modified.

NMFS anticipates that the action will result in no impacts to marine mammal habitat beyond rendering the areas immediately around the NEODS training operations in the EGTTR less desirable shortly after each demolition event. The impacts will be localized and instantaneous. Impacts to marine mammal, invertebrate, and fish species are not expected to be detrimental.

In order to issue an Incidental Take Authorization under section 101(a)(5)(A) and (D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses. The NDAA of 2004 amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that “the least practicable adverse impact” includes consideration of personnel, safety, practicality of implementation, and the impact on the effectiveness of the “military readiness activity.” NEODS training involves military readiness activities.

NEODS has employed a number of mitigation measures in an effort to substantially decrease the number of animals potentially affected. Eglin AFB is committed to assessing the mission activity for opportunities to provide operational mitigations while potentially sacrificing some mission flexibility.

Mitigation consists of visual monitoring of the mission site that is required in order to decrease the likelihood of potential impacts to marine mammals and other protected species. Pre- and post-mission surveys using trained observers are required for each NEODS mission. Surveys will be conducted from surface vessels and possibly helicopters. Missions will only be conducted during daylight hours (i.e., an hour after sunrise and an hour before sunset). Depending on visibility, surface observation would be effective out to several kms.

Trained observers onboard support boats would be staged from the highest point possible. The observer on the vessel will be familiar with marine life in the mission area and must be equipped with optical equipment with sufficient magnification (e.g., binoculars), which should allow the observer to sight and report surfacing marine mammals from a significant distance. The trained observer will have proper lines of communication to make recommendations to the Officer in Tactical Command so that he/she can then decide on whether or not the mission can proceed.

Weather that supports the ability to sight marine life is required in order to mitigate the test site effectively (DON, 1998). Wind, visibility, and surface conditions of the GOM are the most critical factors affecting mitigation operations. Higher winds typically increase wave height and create “white cap” conditions, limiting an observer's ability to locate surfacing marine mammals. NEODS missions would be canceled or delayed if the sea state were greater than the Scale Number 3 described on Table 9 (below) and in Eglin AFB's application.

During a typical mission in the GOM, visual surveys are conducted out to a distance from the detonation point corresponding to the largest impact ZOI, which would be the Level B sub-TTS behavioral harassment range. However, due to recent dolphin mortalities associated with EOD activities at the Silver Strand Training Complex (SSTC) off of San Diego, California, new survey protocols will be implemented. These protocols represent an agreement between the U.S. Navy and NMFS regarding the size of the visual survey areas for training activities using time-delay fuses. Such fuses are used so that U.S. Navy personnel can safely vacate the area before detonation occurs. The U.S. Air Force will ensure that the U.S. Navy complies with the mitigation and monitoring protocols set forth herein this document, and future reference will be to the U.S. Navy, as the U.S. Navy carries out the NEODS training operations.

Under the new protocol, the survey radius (distance from the detonation point) is increased so that marine mammals would not likely have time to swim into the affected area after the charge has been set and U.S. Navy divers have left the area. Once the system is armed and divers exit the water, they are typically not allowed back into the water to disarm the charge. Therefore, the distance that a dolphin could typically swim during the time delay is added to the survey distance. The typical swim speed for dolphin species is considered to be 5.6 km per hour (three knots), or approximately 93.3 m (102 yards [yd]) per minute. Table 10 (Table 11-2 of the application) lists the distance a dolphin might travel at this swim speed during various time delays. In addition, NMFS requested that an additional 182.9 m (200 yd) buffer be added to this distance to account for dolphins possibly swimming faster than the average speed of three knots. This additional buffer is shown in the table below.

The total distance potentially traveled during the time delay, as listed in Table 10, is then added to the range of the applicable NMFS injury criteria to determine the final survey radius. The more conservative (larger) of the ranges between the injury dual criteria is used, which for the document is the 13 psi-msec threshold (see Table 5 above or Table 6-2 of the application). If marine mammals are not observed within the mitigation-monitoring zone before the charge is set, they would be unlikely to swim into the injury zone during the time-delay window. The adjusted survey radius for various time delays is Table 11 below (see Table 11-3 of the application). The injury criterion range and final survey distance are shown in meters in order to be consistent with U.S. Navy standards established for the SSTC.

In order to provide a more practical implementation of mitigation measures, the U.S. Navy and NMFS agreed to round survey ranges to distances more easily delineated in the field. Therefore, to be consistent with the method used for missions at the U.S. Navy's SSTC, the survey distances shown in Table 11 are rounded to either 914.4 or 1,280.2 m (1,000 or 1,400 yd). A different number of survey vessels are required for each distance. The final rounded distances are shown in Table 12 (Table 11-4 of the application).

The following visual monitoring requirements will be implemented for each NEODS mission. These requirements are based on the agreement between NMFS and the U.S. Navy for EOD activities conducted in water depths of 7.3 m (24 ft) or greater.

• Underwater detonations using timed delay devices will only be conducted during daylight hours (i.e., an hour after sunrise and an hour before sunset).

• Time delays longer than 10 minutes will not be used. Initiation of the timer device will not start until the mitigation-monitoring zone is clear of marine mammals for 30 minutes.

• A mitigation-monitoring zone will be established around each underwater detonation location as indicated in Table 12 based on charge weight and length of time-delay used. When conducting surveys within the mitigation-monitoring zone radius (but always outside the detonation plume radius/human safety zone) boats will travel in a circular pattern around the detonation point, surveying the inner (toward the detonation site) and outer (away from the detonation site) areas. For a survey radius of 1,000 yd, the boat will be positioned at 457.2 m (500 yd) from the detonation point. Similarly, for a survey radius of 1,400 yd, boats will be positioned at a distance of 640.1 m (700 yd).

• For a survey radius of 1,000 yd, two boats are required. For a radius of 1,400 yd, either three boats or two boats/one helicopter are required.

• When using two boats, each boat will be positioned on opposite sides of the detonation location, separated by 180 degrees. When using three boats, each boat will be separated by 120 degrees (equidistant from each other).

• Two observers in each boat will conduct continuous visual surveys of the mitigation-monitoring zone for the entire duration of the training event, including at least 30 minutes prior to detonation. Observers will search the mitigation-monitoring zone for the presence of marine mammals, and other marine species such as sea turtles, diving birds, large concentrations of fish or jellyfish, and large Sargassum mats. The presence of diving birds, fish, jellyfish, and Sargassum may indicate an increased likelihood of dolphin presence.

• The mission would be postponed if large concentrations of fish, jellyfish, and/or large Sargassum rafts are observed within the mitigation-monitoring zone. The delay would continue until the fish, jellyfish, and/or large Sargassum rafts that caused the postponement are confirmed to be outside the mitigation-monitoring zone.

• To the extent practicable, boats will maintain a 18.5 km per hour (10 knot or 11.5 miles per hour) search speed. This search speed is expected to ensure adequate coverage of the buffer zone. While weather conditions and sea state may require slower speeds in some instances, 10 knots is considered a prudent, safe, and executable speed that will allow adequate surveillance. For a 1,000-yd survey zone, a boat travelling at 10 knots and 500 yd from the detonation point would circle the point approximately 3.2 times during a 30-minute survey period. By using two boats, approximately 6.4 circles would be completed in total. Similarly, for a 1,400 yd radius, each boat would circle the detonation point approximately 2.3 times within 30 minutes, and use of three boats would result in 6.9 total circles.

• If available, a U.S. Navy helicopter can be used in lieu of one of the survey boats, so long as safety of flight is not jeopardized. U.S. Navy helicopter pilots are trained to conduct searches for relatively small objects in the water, such as a missing persons. A helicopter search pattern is dictated by standard U.S. Navy protocols and accounts for multiple variables, such as size and shape of the search area, size of the object, and environmental conditions, among others.

• The mitigation-monitoring zone will be surveyed for 30 minutes prior to detonation and continue for 30 minutes after detonation (concentrated on the area down current of the test site), in order to monitor for marine mammals and other protected species. It is the U.S. Navy's intent to conduct five successive detonations with a maximum time of 20-minutes between detonations, although a variety of factors can cause a delay of longer than 20 minutes, including a delay until the following day. Monitoring would continue during the 20 minute interval between detonations, and would serve as both post-detonation monitoring as well as pre-mission monitoring for the next detonation. If the time between detonations is delayed beyond 20 minutes, post-mission monitoring will be conducted for 30 minutes. At the conclusion of the final detonation, post-monitoring will be conducted for 30 minutes.

• Other personnel besides designated observers shall also maintain situational awareness of the presence of marine mammals within the mitigation-monitoring zone to the extent practicable given dive safety considerations.

• Divers placing the charges on mines will observe the immediate underwater area around the detonation site for marine mammals and other marine species such as diving birds, sea turtles, and Gulf sturgeon, and report sightings to surface observers.

• If a marine mammal is sighted within an established mitigation-monitoring zone or moving towards it, underwater detonation events will be postponed or suspended until the marine mammal that caused the postponement/suspension of training operations has voluntarily left the area and the area is clear of marine mammals for at least 30 minutes.

• If a marine mammal is detected within or about to enter an established mitigation-monitoring zone and subsequently cannot be reacquired, the mission will be postponed or suspended until the last verified location is outside the mitigation-monitoring zone, the animal is moving away from the area, and the area is clear of marine mammals for at least 30 minutes.

• Any marine mammal observed after an underwater detonation either injured or exhibiting signs of distress will be reported to the Eglin AFB. Eglin AFB will coordinate with other members of marine mammal stranding networks, as appropriate, and report these events to NMFS or USFWS. The report will contain date and time of sighting, location, species description, and indications of the animal's status (see section below for more information on reporting).

NEODS training operations will be suspended and the U.S. Air Force will re-initiate consultation under the MMPA with NMFS' Office of Protected Resources if (1) a marine mammal is killed or seriously injured and the injury or death could be associated with the NEODS training operations; and (2) implementing supplemental mitigation and monitoring measures is not likely to reduce the risk of serious injury or death to a very low level. The U.S. Air Force will suspend operations until the proper authorization for incidental take is obtained from NMFS.

In order to issue an ITA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present. Any authorization issued pursuant to this final rule will require the U.S. Air Force to conduct mitigation monitoring before, during, and after completion of training exercises in accordance with the procedures discussed above. Methods for monitoring will include trained observers positioned on vessels. Monitors will be required to record and report specific data to NMFS in an annual monitoring report.

Mitigation may include any supplemental activities that are designed and exercised to help reduce or eliminate the potential adverse impacts to the marine resources. The U.S. Air Force recognizes the importance of such “in-place” mitigations and is aware that NMFS recommends an approved mitigation plan that outlines the scope and effectiveness of the action's mitigations.

The risk of harassment (Levels A and B) to marine mammals has been determined to be relatively small. Eglin AFB has determined that with the implementation and commitment to utilizing the “visual monitoring” mitigations, potential takes are greatly reduced.

For NEODS testing, areas to be used in missions are visually monitored for marine mammal presence from a surface vessel prior to detonation of mine neutralization charges. Monitoring would be conducted before missions to clear marine mammals within the ZOI. If protected animals are inside the ZOI, firing would be postponed until they left the area. The following procedures will be conducted during the mission activities:

• Conduct survey clearance procedures using best operational methods possible.

• Clear ZOI and avoid all dolphins and protected species indicators (e.g., Sargassum rafts) to the maximum extent possible.

• Re-conduct clearance procedures if dolphins or protected species indicators (e.g., Sargassum rafts) are encountered.

• All observers must complete the Marine Observer Certification course annually.

• Conduct post-mission observation and report operations data as required by Eglin's Natural Resources Section, 96 CEG/CEVSN.

• Submit an annual summary (coordinated through 96 CEG/CEVSN) of mission observations to:

and

Information recorded will include species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors before, during, and after explosive activities. Observations of unusual behaviors, numbers, or distributions of marine mammals in the activity area will be reported to NMFS and USFWS so that any potential follow-up observations can be conducted by the appropriate personnel. In addition, observations of tag-bearing marine mammals, sea turtles, and fish carcasses as well as any rare or unusual species of marine mammals and fish would be reported to NMFS and USFWS.

Eglin AFB would notify NMFS and the Regional Office prior to initiating of each explosive demolition session. If at any time injury or death of any marine mammal occurs that may be a result of the NEODS activities, Eglin AFB would suspend activities and contact NMFS immediately to determine how best to proceed to ensure that another injury, serious injury, or death does not occur, and to ensure that the applicant remains in compliance with the MMPA. Any takes of marine mammals other than those authorized by the LOA, as well as any injuries or deaths of marine mammals, will be reported to the Southeast Regional Administrator, within 24 hours. An annual draft final report must be submitted to NMFS within 90 days after the conclusion of the NEODS activities. An annual report must be submitted at the time of renewal of the LOA as well. Also, a report must be submitted at least 180 days prior to the expiration of these regulations. The report will include a summary of the activities undertaken and information gathered pursuant to the monitoring requirements set forth in the regulations and LOA, including dates and times of detonations as well as pre- and post-blasting monitoring observations. A final report must be submitted to the Regional Administrator within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report would be considered to be the final report.

In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by this rule, such as an injury, serious injury or mortality, Eglin AFB will immediately cease the specified activities and report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS at (301) 427-8401 and/or by email to Jolie.Harrison@noaa.gov and Howard.Goldstein@noaa.gov, and the NMFS Southeast Region Marine Mammal Stranding Network at (877) 433-8299 ( Blair.Mase@noaa.gov and Erin.Fougeres@noaa.gov ) (Florida Marine Mammal Stranding Hotline at (888) 404-3922). The report must include the following information:

• Time, date, and location (latitude/longitude) of the incident;

• Description of the incident;

• Status of all noise-generating sources use in the 24 hours preceding the incident;

• Water depth;

• Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

• Description of all marine mammal observations in the 24 hours preceding the incident;

• Species identification or description of the animal(s) involved;

• Fate of the animal(s); and

• Photographs or video footage of the animal(s) (if equipment is available).

Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with Eglin AFB to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Eglin AFB may not resume their activities until notified by NMFS via letter or email, or telephone.

In the event that Eglin AFB discovers an injured or dead marine mammal, and the lead observer determines that the cause of injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), Eglin AFB will immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301) 427-8401, and/or by email to Jolie.Harrison@noaa.gov and Howard.Goldstein@noaa.gov, and the NMFS Southeast Region Marine Mammal Stranding Network ((877) 433-8299) and/or by email to the Southeast Regional Stranding Coordinator ( Blair.Mase@noaa.gov ) and Southeast Regional Stranding Program Administrator ( Erin.Fougeres@noaa.gov ). The report must include the same information identified in the paragraph above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with Eglin AFB to determine whether modifications in the activities are appropriate.

In the event that Eglin AFB discovers an injured or dead marine mammal, and the lead observer determines that the injury or death is not associated with or related to the activities authorized in the final rule (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Eglin AFB will report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301) 427-8401, and/or by email to Jolie.Harrison@noaa.gov and Howard.Goldstein@noaa.gov, and the NMFS Southeast Regional Marine Mammal Stranding Network ((877) 433-8299), and/or by email to the Southeast Regional Stranding Coordinator ( Blair.Mase@noaa.gov ) and Southeast Regional Stranding Program Administrator ( Erin.Fougeres@noaa.gov ), within 24 hours of discovery. Eglin AFB will provide photographs or video footage (if available) or other documentation of the stranded animals sighting to NMFS and the Marine Mammal Stranding Network.

Although Eglin AFB does not currently conduct independent Air Force monitoring efforts, Eglin's Natural Resources Section does participate in marine animal tagging and monitoring programs lead by other agencies. Additionally, the Natural Resources Section supports participation in annual surveys of marine mammals in the GOM with NMFS. From 1999 to 2002, Eglin AFB's Natural Resources Section, through a contract representative, participated in summer cetacean monitoring and research opportunities. The contractor participated in visual surveys in 1999 for cetaceans in the GOM, photographic identification of sperm whales in the northeastern GOM in 2001, and as a visual observer during the 2000 Sperm Whale Pilot Study and the 2002 sperm whale Satellite-tag (S-tag) cruise. In addition, Eglin's Natural Resources Section has obtained Department of Defense funding for two marine mammal habitat modeling projects. The latest such project (Garrison, 2008) included funding and extensive involvement of NMFS personnel so that the most recent aerial survey data could be utilized for habitat modeling and animal density estimates in the northeastern GOM.

Eglin AFB conducts other research efforts that utilize marine mammal stranding information as a means of ascertaining the effectiveness of mitigation techniques. Stranding data is collected and maintained for the Florida panhandle and GOM-wide areas. This is undertaken through the establishment and maintenance of contacts with local, state, and regional stranding networks.

Eglin AFB assists with stranding data collection by maintaining its own team of stranding personnel. In addition to simply collecting stranding data, various analyses are performed. Stranding events are tracked by year, season, and NMFS' statistical zone, both GOM-wide and on the coastline in proximity to Eglin AFB. Stranding data is combined with records of EGTTR mission activity in each water range and analyzed for any possible correlation. In addition to being used as a measure of the effectiveness of mission mitigations, stranding data can yield insight into the species composition of cetaceans in the region.

As explained, NMFS will only issue an authorization to incidentally take marine mammals pursuant to section 101(a)(5)(A) of the MMPA if, based on review of the best scientific information available and consideration of applicable mitigation and their likely effectiveness, it determines that the total taking authorized over the five-year period will have a negligible impact on affected species or stocks of marine mammals. NMFS implementing regulations codified at 50 CFR 216.103 state that “negligible impact is an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

In making a negligible impact determination NMFS evaluated factors such as:

(1) The number of anticipated injuries, serious injuries, or mortalities;

(2) The number, nature, intensity, and duration of Level B harassment (all relatively limited);

(3) The context in which the takes occur (i.e., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive contemporaneous actions when added to baseline data);

(4) The status of stock or species of marine mammal (i.e., depleted, not depleted, decreasing, increasing, stable, and impact relative to the size of the population);

(5) Impacts on habitat affecting rates of recruitment or survival; and

(6) The effectiveness of monitoring and mitigation measures (i.e., the manner and degree in which the measure is likely to reduce adverse impacts to marine mammals, the likely effectiveness of the measures, and the practicability of implementation).

Tables 2, 3, 6, 7, and 8 in this document disclose the habitat, regional abundance, conservation status, density, and the number of individuals exposed to sound levels considered the threshold for Level A and B harassment. Also, there are no known important reproductive or feeding areas in the action area.

For reasons stated previously in this document, and in the proposed rule (76 FR 60694, October 1, 2010), the specified activities associated with the NEODS training operations are not likely to cause PTS or other non-auditory injury, serious injury, or death to affected marine mammals. As a result, no take by injury, serious injury, or death is anticipated or authorized, and the potential for temporary or permanent hearing impairment is very low and will be minimized through the incorporation of the monitoring and mitigation measures.

Approximately 50 Atlantic bottlenose dolphins are anticipated to incur hearing impairment (TTS). While some other species of marine mammals (none of which are ESA-listed) occur in the project area year-round, only Atlantic bottlenose dolphins are anticipated to be potentially impacted by the NEODS operations. Due to the nature, degree, and context of the Level B harassment anticipated, the activity is not expected to impact rates of recruitment or survival.

Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hr cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007). NEODS operations would occur up to eight times annually, at varying times within the year, and include two “live demolition” days. Therefore, the U.S. Air Force's NEODS operations will not be creating increased sound levels in the marine environment for prolonged periods of time.

The population estimates for the species that may be taken by harassment from the most recent U.S. Gulf of Mexico Stock Assessment Reports and Protected Species Habitat Modeling in the EGTTR were provided earlier in this document. From the most conservative estimates of both marine mammal densities in the action area and the size of the harassment thresholds, the maximum calculated number of individual Atlantic bottlenose dolphins that could potentially be harassed annually and over the five-year rule is 6 (summer) and 4 (winter) (10 total annually), which numbers amount to 0.05 percent (summer) and less than 0.01 percent (winter) of the total estimated population size.

Based on the analysis contained herein, of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS has determined that NEODS operations by the U.S. Air Force will result in the incidental take of marine mammals, by Level B harassment only, and that the total taking from the NEODS training operations over the five-year period covered by the regulations would have a negligible impact on the affected species or stocks of marine mammals.

Section 101(a)(5)(A) of the MMPA also requires NMFS to determine that the total of such taking authorized will not have an unmitigable adverse effect on the availability of marine mammal species or stocks for taking for subsistence uses. There is no subsistence hunting for marine mammals in the waters off of the coast of Florida that implicates section 101(a)(5)(A) of the MMPA.

For the reasons already described in this preamble, NMFS has determined that the described NEODS training operations and the accompanying LOA are not likely to affect marine mammal species managed under NMFS jurisdiction and protected by the ESA. The U.S. Air Force requested an informal section 7 consultation with NMFS SERO on May 9, 2010 and NMFS SERO concurred that the action may affect, but is not likely to adversely affect, ESA-listed species or designated critical habitat in a letter to the U.S. Air Force dated July 28, 2010.

NMFS has conducted the necessary NEPA analysis and has prepared an “Environmental Assessment on the Promulgation of Regulations and the Issuance of a Letter of Authorization to Take Marine Mammals, by Harassment, Incidental to Naval Explosive Ordnance Disposal School Training Operations at Eglin Air Force Base, Florida,” which analyzes the project's purpose and need, alternatives, affected environment, and environmental effects for the action prior to making a determination on the final rule. Based on the analysis in the EA and the underlying information in the record, including the application, proposed rule, public comments and informal section 7 consultation, NMFS has prepared and issued a Finding of No Significant Impact determining that preparation of an Environmental Impact Statement is not required.

Based on Eglin AFB's application, as well as the analysis contained herein, NMFS has determined that the impact of the described NEODS training operations will result, at most, in a temporary modification in behavior (Level B harassment) of Atlantic bottlenose dolphins, which are expected to temporarily vacate the action area to avoid NEODS training activities. The activities may also result in minor visual and acoustic disturbances from detonations. The effect of the NEODS training operations is expected to be limited to non-TTS behavioral disturbance and short-term and localized TTS-related behavioral changes.

Due to the infrequency, short time-frame, and localized nature of these activities, NMFS only expects and has thus authorized the incidental take of up to 50 Atlantic bottlenose dolphins. In addition, no take by injury, serious injury, or death is anticipated, and take by Level B harassment will be at the lowest level practicable due to incorporation of the monitoring and mitigation measures mentioned previously in this document. No injury (Level A harassment), serious injury, or mortality is expected or authorized for marine mammals, and take by harassment will be at the lowest level practicable due to incorporation of the monitoring and mitigation measures mentioned previously in this document. Further, NMFS has determined that the anticipated takes incidental to this activity are expected to result in a negligible impact on the affected species or stocks of marine mammals. The provision requiring that the activity not have an unmitigable adverse impact on the availability of the affected species or stock for subsistence uses does not apply to this action as there are no subsistence users within the specified geographic area of the project.

For purposes of Executive Order 12866, the Office of Management and Budget has determined that this rule stage is not significant.

Pursuant to section 605(b) of the Regulatory Flexibility Act, the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief of Counsel for Advocacy of the Small Business Administration that this final rule would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

As a result of these determinations, NMFS is issuing five-year regulations establishing a framework for the issuance of LOAs to Eglin AFB for the take of Atlantic bottlenose dolphins by Level B harassment incidental to NEODS training operations, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

In addition to minor edits to the rule for clarification, NMFS has made the following changes to the rule:

• Revised dates;

• Revised safety zones based on the weight of the charge;

• Revised analysis of takes based on the Level A harassment (injury) threshold of 13 psi-msec and the Level B harassment (non-TTS) threshold of 177 dB re 1 μPa 2 -sec;

• Revised monitoring and mitigation measures to increase the probability of detecting all marine mammals within or entering the identified safety zones under various Beaufort sea state and weather conditions;

• Revised monitoring and mitigation measures to reduce the potential for lethal take of bottlenose dolphins, as occurred in similar explosive training operations at the U.S. Navy's Silver Strand Training Complex near San Diego, California; and

• Require suspension of the NEODS training operations if a marine mammal is seriously injured or killed and the injury or death could be associated with the Eglin AFB activities and, if supplementary measures are unlikely to reduce the risk of serious injury or death to a very low level, require the U.S. Air Force to suspend its activities until an authorization for such taking has been obtained.

For reasons set forth in the preamble, 50 CFR part 217 is amended as follows:

Background

The IPHC has promulgated regulations governing the Pacific halibut fishery in 2012 under the Convention between Canada and the United States for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979).

As provided by the Northern Pacific Halibut Act of 1982 (Halibut Act) at 16 U.S.C. 773b, the Secretary of State, with the concurrence of the Secretary of Commerce (Secretary), may accept or reject, on behalf of the United States, recommendations made by the IPHC in accordance with the Convention (Halibut Act, Sections 773-773k.). On March 5, 2012, the Secretary of State of the United States, with the concurrence of the Secretary, accepted the 2012 IPHC regulations as provided by the Northern Pacific Halibut Act of 1982 (Halibut Act) at 16 U.S.C. 773-773k.

The Halibut Act provides the Secretary with the authority and general responsibility to carry out the requirements of the Convention and the Halibut Act. The Regional Fishery Management Councils may develop and the Secretary may implement regulations governing harvesting privileges among U.S. fishermen in U.S. waters that are in addition to, and not in conflict with approved IPHC regulations. The NPFMC has exercised this authority most notably in developing a suite of halibut management programs that correspond to the three fisheries that harvest halibut in Alaska: the subsistence, sport, and commercial fisheries.

Subsistence and sport halibut fishery regulations are codified at 50 CFR part 300. Commercial halibut fisheries in Alaska operate within the Individual Fishing Quota (IFQ) Program and Community Development Quota (CDQ) Program (50 CFR part 679), and through area-specific catch sharing plans. Regulations for a commercial and sport fishery Halibut CSP in Areas 2C and 3A are being developed pursuant to the NPFMC authority under the Halibut Act. NMFS published a proposed rule for the Area 2C and Area 3A CSP on July 16, 2011, and accepted comments on the proposed rule and on the Environmental Assessment (EA), Regulatory Impact Review, and Initial Regulatory Flexibility Analysis (IRFA) prepared for the CSP through September 21, 2011. In October 2011, NMFS informed the NPFMC that public comments received on the proposed CSP raised issues that may require additional input from the NPFMC before NMFS can proceed to a final rule. NMFS is continuing to work with the NPFMC to address these issues of concern and is seeking NPFMC advice on how to proceed with agency review of the Area 2C and Area 3A CSP.

The PFMC also exercises authority in a CSP allocating halibut among groups of fishermen in Area 2A, off the coasts of Washington, Oregon, and California. The CSP allocates the Area 2A catch limit among treaty Indian and non-Indian harvesters, and non-Indian commercial and sport harvesters. The treaty Indian group includes tribal commercial, and tribal ceremonial and subsistence fisheries. The Secretary implemented the Area 2A CSP recommended by the PFMC in 1995. Each year between 1995 and the present, the PFMC has adopted minor revisions to the plan to account for needs of the fisheries. These revisions are implemented in regulations for Area 2A through annual rule making and annual IPHC review and recommendation of management measures for Secretarial review. The Area 2A regulations are part of the IPHC annual management measures and are superseded each year by new implementing regulations.

The NPFMC implemented a CSP among commercial IFQ and CDQ halibut fisheries in IPHC Areas 4C, 4D and 4E (Area 4) through rulemaking, and the Secretary approved the plan on March 20, 1996 (61 FR 11337). The Area 4 CSP regulations were codified (50 CFR 300.65) and amended through rule making on March 17, 1998 (63 FR 13000). New annual regulations pertaining to the Area 4 CSP also may be implemented through IPHC review and recommendation for Secretarial review.

Publication of this final rule announces that the U.S. Secretary of State has accepted the annual management measures recommended by the IPHC, implements Area 2A regulations supporting annual management measures recommended by IPHC, implements the Area 2A CSP, announces the GHLs for Areas 2C and 3A, and makes minor changes to the codified halibut regulations. The proposed rule for the Area 2A CSP was published on February 3, 2012 (77 FR 5473).

Pursuant to regulations at 50 CFR 300.62, the approved IPHC regulations setting forth the 2012 IPHC annual management measures are published in the Federal Register to provide notice of their immediate regulatory effect, and to inform persons subject to the regulations of the restrictions and requirements. NMFS could implement more restrictive regulations for the sport fishery for halibut or components of it; therefore, anglers are advised to check the current Federal or IPHC regulations prior to fishing.

The IPHC held its annual meeting in Anchorage, Alaska, January 24-27, 2012, and recommended a limited number of changes to the previous IPHC regulations (76 FR 14300, March 16, 2011). The Secretary of State approved the following changes to the previous IPHC regulations for 2012:

1. New halibut catch limits in all regulatory areas in Section 11;

2. New commercial halibut fishery opening and closing dates in Section 8;

3. Licensing requirements for retaining incidental Pacific Halibut caught in the Primary Sablefish Fishery North of Pt. Chehalis, Washington; in Sections 4 and 8;

4. Modified logbook regulations in Areas 2A and 2B in Section 16;

5. Adopting the revised Catch Sharing Plan (CSP) for Area 2A in Sections 22 and 26;

6. Size limit on the halibut retained on board a charter vessel fishing in Regulatory Area 2C of less than 45 inches or greater than 68 inches in length (a “reverse slot limit”) in Section 28.

These are the only changes to the previous IPHC regulations for the 2012 fishing season. NMFS is publishing the 2012 IPHC regulations in this final rule to provide the public with the complete set of regulations.

The IPHC recommended to the governments of Canada and the United States catch limits for 2012 totaling 33,540,000 pounds (15,213 mt), an 18.3 percent reduction from the 2011 catch limits for all areas. The IPHC staff reported on the 2011 assessment of the Pacific halibut stock that estimated coastwide biomass, with apportionment among regulatory areas based on the data from the annual IPHC standardized stock assessment survey. The IPHC recommended a 21.5 percent harvest rate for Area 2A through Area 3A, and a harvest rate of 16.1 percent for Areas 3B, 4A, 4B and 4CDE. Catch limits adopted for 2012 were lower in all regions of the stock except Areas 2A and 2C. The IPHC also recommended using the harvest control rule it adopted in 2011 to implement the full reductions in catch limits identified by the stock assessment, rather than the partial (50 percent) reductions used in previous years. Concern exists over continued declining halibut catch rates in most areas and IPHC staff recommended continued action to reduce harvests. The IPHC staff also noted as a continuing problem that updated information often indicates that previous estimates of biomass are incorrect, and that as a result actual historical harvest rates of the halibut stock are higher than the estimates IPHC used to inform its stock assessments. IPHC scientists will be conducting additional research on this matter in 2012.

The IPHC adopted the staff recommendations for catch limits in 2012 for all areas except 2B. Catch limits adopted for Areas 2A and 2C in 2012 were approximately 9 percent, and 13 percent higher, respectively, than in 2011. Catch limits adopted for Areas 2B, 3A, and 3B in 2012 were approximately 8 percent, 17 percent, and 32 percent lower, respectively, than in 2011 Catch limits in Areas 4A, 4B, 4CD, and 4E were approximately 35 percent, 14 percent, 34 percent, and 26 percent lower, respectively, than in 2011.

The opening date for the tribal commercial fishery in Area 2A and for the commercial halibut fisheries in Areas 2B through 4E is March 17, 2012. The date takes into account a number of factors, including timing of halibut migration and spawning, marketing for seasonal holidays, and interest in getting product in to the processing plants before the herring season opens. The closing date for the halibut fisheries is November 7, 2012. This date takes into account the anticipated time required to fully harvest the commercial halibut catch limits while providing adequate time for IPHC staff to review the complete record of 2012 commercial catch data for use in the 2013 stock assessment process.

In the Area 2A directed fishery, each fishing period shall begin at 0800 hours and terminate at 1800 hours local time on June 27, July 11, July 25, August 8, August 22, September 5, and September 19, 2012, unless the IPHC specifies otherwise. These 10-hour openings will occur until the quota is taken and the fishery is closed.

Because the Area 2A TAC is over 900,000 lbs (408.2 mt), incidental take of halibut will be allowed in the sablefish primary fishery in 2012. Therefore regulations pertaining to vessel licensing in Area 2A were updated at paragraph 4(4)(a) to allow vessels operating in the commercial halibut or sablefish primary fishery to choose a license that allows this type of participation.

This final rule prohibits a person onboard a charter vessel referred to in 50 CFR 300.65 and fishing in Area 2C from taking or possessing any halibut, with head on, that is greater than 45 inches (114.3 cm) and less than 68 inches (172.7 cm), as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail.

The IPHC recognizes the role of the NPFMC to develop policy and regulations that allocate the Pacific halibut resource among fishermen in and off of Alaska, and that NMFS has developed numerous regulations to support the NPFMC's goals of limiting guided sport (charter) harvests over the past several years. The IPHC specifically recommended this additional size limit as a management measure in the Area 2C charter fishery, based on guidance from the NPFMC to limit charter halibut harvests to the stated harvest policy of the United States for the charter fishery, the GHL.

The GHL was recommended by the NPFMC in February 2000, after several years of debate and refinement. NMFS published a final rule implementing the GHL on August 8, 2003 (68 FR 47256). The GHL establishes a pre-season estimate of the acceptable annual harvests for the charter fishery in Areas 2C and 3A. The GHLs are established as a total maximum poundage, which is responsive to annual fluctuations in abundance. For example, in the event of a reduction in either area's halibut biomass, as determined by the IPHC, the area GHL is reduced incrementally in a stepwise fashion in proportion to the reduction.

Regulations at § 300.65(c)(1) specify the GHLs based on the total constant exploitation yield (CEY) that is established annually by the IPHC. The CEY represents the target level for total halibut removals in an area for the coming year. The IPHC calculates the CEY in a given area by multiplying a target harvest rate by the estimate of exploitable biomass, or the portion of the biomass available to the fishery. The charter halibut fishery exceeded the GHL in Area 2C from 2004 through 2010. During 2004 through 2007, the GHL was 1,432,000 pounds. During that time period, charter harvests were approximately 1,750,000 pounds in 2004, 1,952,000 pounds in 2005, 1,804,000 pounds in 2006, and 1,918,000 pounds in 2007. In 2008, the GHL was 931,000 pounds and charter harvests were approximately 1,999,000 pounds. In 2009 the GHL was 788,000 pounds and the charter harvest was approximately 1,245,000 pounds. In 2010, the GHL was 788,000 pounds and the charter harvest was approximately 1,249,000 pounds. The Area 2C charter harvest exceeded its GHL every year from 2004 through 2010 notwithstanding management measures designed by the NPFMC and implemented by NMFS to control sport halibut harvest to the GHL in this area.

Recognizing that the GHL was not limiting fishing, the NPFMC recommended a CSP for Area 2C and Area 3A in October 2008, to replace the current GHL and establish specific allocations of halibut harvest between the charter and commercial setline fisheries in Area 2C and 3A. Under the CSP, the IPHC would annually establish one combined charter and commercial catch limit to which pre-specified sector allocation percentages would apply. Multiplying the specified percentage by the combined catch limit would result in a specific catch limit for each sector. Using a nondiscretionary process specified in Federal regulations, changes in the combined charter and commercial catch limit could trigger changes in the charter halibut bag and size limit in effect for that year.

At the IPHC's annual meeting in January 2011, the IPHC became aware that charter halibut harvests in Area 2C were likely to exceed the 788,000 pound GHL based on the well-established trend of charter harvests since 2004, and the demonstrated removals under existing regulations. Therefore, the IPHC concluded that additional restrictions were necessary to limit that charter harvest to the GHL and achieve the IPHC's overall conservation objective and the NPFMC's allocation objective for Area 2C.

The IPHC determined that limiting charter harvests in Area 2C to one fish of no more than 37 inches would likely meet the multiple objectives established by the IPHC in 2011. The Secretary of State, with the concurrence of the Secretary, accepted the IPHC's recommended daily bag limit for charter vessel anglers in Area 2C of one halibut with a maximum length of 37 inches (94.0 cm) per day (76 FR 14300, March 16, 2011).

In November 2011, the Alaska Department of Fish and Game (ADF&G) estimated that 2011 Area 2C charter harvests under the 37-inch maximum length rule totaled approximately 388,000 pounds, which is significantly below the GHL of 788,000 pounds. The NPFMC determined that the GHL would continue to be in place for the 2012 charter halibut season because the CSP would not be implemented for 2012. Based on the 2011 charter harvest estimate that was well below the GHL under the 37-inch maximum length limit regulation, the NPFMC determined that it would be appropriate for IPHC to consider management measures in addition to a maximum length limit to limit charter harvest to the GHL. To address this issue for 2012, the NPFMC requested that ADF&G analyze the following options for management measures for the Area 2C charter halibut fishery to limit charter harvest to the 2012 GHL:

1. Maximum size limits;

2. Reverse slot limits (anglers may retain fish under a relatively small maximum size limit and fish over a relatively high minimum size limit, but must return to the sea fish that are larger than the lower size limit and smaller than the upper size limit); and

3. Closures on selected days of the week.

In November 2011, the IPHC announced the total CEY for Area 2C in 2012, which results in an Area 2C GHL of 931,000 pounds. In December 2011, the NPFMC reviewed the analysis of the management measures to limit Area 2C charter harvest to the 2012 GHL and unanimously recommended that the IPHC implement a reverse slot limit with a lower limit of under 45 inches (U45) and an upper limit of over 68 inches (O68). This U45/O68 reverse slot limit would allow the retention of halibut approximately ≤ 32 pounds and ≥ 123 pounds (headed and gutted). In considering charter management measures for 2012, the NPFMC sought to select a management measure that would enable the charter sector to harvest an amount of halibut close to the GHL without exceeding it.

The NPFMC noted that its U45/O68 reverse slot limit recommendation is likely to limit charter harvest to the GHL because the analysis projected that charter harvest under these length limits would be 6.4 percent under the GHL. The NPFMC also determined that its recommendation was conservative because it assumes (1) the higher of two harvest projections of numbers of fish (45,338) harvested by charter vessel anglers in Area 2C based on the recent 3-year average; and (2) that charter vessel anglers will want to retain the largest halibut possible, will choose to release more smaller halibut in comparison to recent years, and this selectivity will result in approximately 20 percent more fish harvested that are greater than 68 inches in length than in the previous fishing year.

The NPFMC recommended a reverse slot limit instead of a maximum length limit based on input from its Charter Implementation Committee and charter fishery participants indicating that the reverse slot limit would provide anglers with an opportunity to retain a “trophy” fish (halibut larger than 68 inches), whereas a maximum length limit would prohibit retention of any halibut larger than the maximum length limit. These charter fishery stakeholders indicated that a reverse slot limit would be less likely to result in adverse economic impacts from reduced angler demand than a maximum length limit regulation.

The NPFMC did not recommend daily closures because of identified enforcement difficulties and uncertainty regarding the effects of daily closures on charter harvest. Additionally, the day of the week closure would impact charter businesses differently, depending on their business model and their ability to change halibut fishing schedules for individual clients.

The NPFMC requested that the IPHC implement the U45/O68 reverse slot limit in the 2012 Area 2C charter fishery. At its annual meeting in January 2012, the IPHC reviewed the ADF&G analysis the NPFMC used in developing its recommendation. The IPHC unanimously recommended implementing the U45/O68 reverse slot limit for charter anglers in Area 2C for the 2012 halibut fishing season. The IPHC determined that its recommended reverse slot limit in Area 2C was necessary to prevent excess halibut harvest by charter vessel anglers as an immediate but interim measure for 2012. The IPHC's recommendation was based on the NPFMC's objective to implement a management measure that would (1) restrict charter harvest to the GHL, and (2) be less likely to result in adverse economic impacts for charter operators from reduced angler demand than a maximum length limit regulation.

Current IPHC regulations prohibit the filleting, mutilation or other disfigurement of sport-caught halibut that would prevent the determination of the size or number of halibut possessed or landed. In Southeast Alaska Area 2C, the IPHC recommended maintaining the current regulation at section 28(2)(b) that a person onboard a charter vessel who possesses filleted halibut must also retain the entire carcass, with head and tail connected as a single piece, onboard the vessel until all the fillets are offloaded. This regulation was implemented in 2011 to facilitate enforcement of the 37-inch maximum size limit and accounting of each charter vessel angler's halibut bag limit. The IPHC recommended maintaining the carcass retention requirement in 2012 to facilitate enforcement of the U45/O68 reverse slot limit in Area 2C.

In addition to implementing the IPHC recommendations, this final rule approves several Council-recommended changes to the Pacific Fishery Management Council's Area 2A CSP, implements the CSP through annual management measures, and makes minor changes to NMFS' codified regulations for the halibut fishery in Area 2A.

This final rule makes minor corrections to the Federal regulations at § 300.63 to make the term “sablefish primary fishery” consistent through the halibut regulations to match the groundfish regulations where the term is defined. Current halibut regulations use inconsistent terms to refer to the sablefish primary fishery. These changes are minor corrections and do not represent a shift in policy regarding the sablefish primary fishery or the halibut fishery.

This final rule approves the CSP as revised by recommendations of the PFMC. For 2012 and beyond, the PFMC has recommended several minor changes to the Plan that would: Adjust the primary fishery schedule for the Washington South coast subarea to maintain the number of fishing days seen in previous years; adjust the quota split for the Columbia River subarea between the early and late fishery to better align the fishery with recent effort trends, and adjust the Oregon contribution to the subarea to better align the Oregon quota contribution to the Columbia River subarea quota with previous years' halibut landings from Oregon; adjust the Oregon Central Coast subarea spring and nearshore quotas to allow the maximum number of fishing days in each fishery and adjust the inseason adjustment rules for this subarea so that any remaining quota from the spring fishery may be allocated to either the summer fishery and/or the nearshore fishery. This final rule also adopts the annual domestic management measures for Area 2A. Changes to these management measures from 2011 are necessary to implement the IPHC's decision regarding the Area 2A total allowable catch (TAC) and the above-described changes to the Catch Sharing Plan.

The adjustment in 2012 to the Oregon contribution to the quota for the Columbia River subarea results in a small portion of the overall Oregon/California sport fishery allocation being undistributed. The overall Oregon/California sport fishery allocation is separated into three components: (1) A contribution to the Columbia River subarea (previously 5 percent or amount equal to the Washington contribution, whichever was greater); (2) a 92 percent allocation to the Oregon Central Coast subarea; and (3) a 3 percent allocation to the South of Humbug subarea. In past years the Oregon contribution to the Columbia River subarea quota was set at 5 percent, because this amount was greater than the Washington contribution, meaning that the three components of the Oregon/California sport fishery allocation totaled 100 percent. This year, the Oregon contribution is set equal to the Washington contribution, which is an amount less than 5 percent of the overall Oregon/California sport fishery allocation. This change results in a remainder of 2 percent undistributed Oregon/California sport fishery allocation. To remedy this situation NMFS is not making any long-term changes to allocations, but is distributing the remainder of the overall Oregon/California sport fishery allocation left after the Columbia River contribution is removed according to the Oregon/California subarea allocations specified in the Plan; i.e., the remainder will be distributed 92 percent to the Central Coast subarea and 3 percent to the South of Humbug subarea. For 2013 and beyond NMFS anticipates that the Council will recommend changes to the CSP to address this issue.

The CSP provides that incidental halibut retention in the sablefish primary fishery north of Pt. Chehalis, Washington, will be allowed when the Area 2A TAC is greater than 900,000 lb (408.2 mt), provided that a minimum of 10,000 lb (4.5 mt) is available above a Washington recreational TAC of 214,100 lb (97.1 mt). In 2012, the TAC is 989,000 lb (448.6 mt); therefore incidental halibut retention will be allowed in this fishery. Landing restrictions will be recommended by the PFMC for public review at its March meeting and final recommendations will occur at its April meeting. Following this meeting NMFS will publish the restrictions in the Federal Register .

This rule makes minor corrections to the Federal regulations at § 300.63 to make the term “sablefish primary fishery” consistent through the halibut regulations and match the groundfish regulations where the term is defined. Current halibut regulations inconsistently use the terms when referring to the sablefish primary fishery.

NMFS accepted comments through February 21, 2012, on the proposed rule for the Area 2A CSP and annual regulations and received 2 public comments: One comment letter each from Washington Department of Fish and Wildlife (WDFW) and Oregon Department of Fish and Wildlife (ODFW) recommending season dates for halibut sport fisheries in each state.

Comment 1: The WDFW held a public meeting following the IPHC's final 2012 TAC decisions to review the results of the 2011 Puget Sound halibut fishery, and to develop season dates for the 2012 sport halibut fishery. Based on the 2012 Area 2A TAC of 989,000 lb (448.6 mt), the halibut quota for the Puget Sound sport fishery is 57,393 lb (26 mt). Because the catch in this area exceeded the quota in 2008, 2009, and 2010, WDFW will continue to use the highest catch rate seen over the last 5 years to determine the number of days available to the fishery. Within the Puget Sound sport halibut fishery, WDFW recommends they open as follows: in the Eastern Region from May 3-19, Thursday through Saturday, and May 24-28, Thursday through Monday, and from May 31 through June 2, Thursday through Saturday. In the Western Region from May 24-28, WDFW recommends the fishery be open Thursday through Monday; and from May 31-June 23, Thursday through Saturday.

Response: NMFS agrees with WDFW's recommended Puget Sound season dates. These dates will help keep this area within its quota, while providing for angler enjoyment and participation. Therefore, NMFS implements the dates in this final rule.

Comment 2: ODFW held a public meeting following the final TAC decision by the IPHC to gather comments on the open dates for the recreational all-depth fishery in Oregon's Central Coast Subarea. Since 2004, the number of open fishing days that could be accommodated in the spring fishery has been roughly constant. The catch limit for this sub-area's spring season will be 191,780 lb (86.9 mt) in 2012, based on the IPHC's 2012 TAC for Area 2A. Because of the increased TAC for 2012, ODFW recommends setting a Central Coast all-depth fishery of 12 days. ODFW recommends the following days for the spring fishery, within this subarea's parameters for a Thursday-Saturday season and with weeks of adverse tidal conditions skipped: Regular open days of May 10-12, 17-19, 24-26 and May 31-June 2; back-up open days of June 14-16, 28-30, July 12-14, and 26-28. For the summer fishery in this subarea, ODFW recommended following the CSP's parameters of opening the first Friday in August, with open days to occur every other Friday-Saturday, unless modified in-season within the parameters of the CSP. Under the CSP, the 2012 summer all-depth fishery in Oregon's Central Coast Subarea occurs: August 3-4, 17-18, August 31-September 1, 14-15, 28-29, October 12-13, and 26-27.

Response: NMFS agrees with ODFW's recommended Central Coast season dates. These dates will help keep this area within its quota, while providing for angler enjoyment and participation. Therefore, NMFS implements the dates in this final rule.

On February 2, 2012, NMFS published a proposed rule to modify the CSP and recreational management measures for Area 2A (77 FR 5473). The final TAC amounts were not available until January 27, 2012, which was after the proposed rule needed to be drafted and sent to the Office of the Federal Register for timely publication. The provisions in the proposed rule were based on the preliminary estimate of the 2A TAC of 989,000 lb. The final 2A TAC is unchanged from the proposed rule. There are four changes to sport fishery season dates in this final rule from the proposed rule. The first two changes are in sections (8)(b)(i)(A) and (B) in the annual management measures. These changes were made after discussion with WDFW to better align the season dates with past practices of having a “quota management closure” following the first two open periods; the dates listed in the proposed rule were in error and did not include a quota management closure.. The third change is in section (8)(d)(i). July 15th was listed as the closing date of the first open period, but it should be July 14th. The first open period is scheduled to close on a Saturday, and July 15 is a Sunday, therefore Saturday July 14 is the correct date. The final change is to season dates in section (8)(e)(i)(C). The opening of the summer season was incorrectly listed as September 7 and 8, the correct dates are September 14-15 to follow the season structure of being open every other week. The remainder of the changes in this final rule are to simply add dates for sport fisheries which were not listed in the proposed rule. The proposed rule does not contain final season dates because the states do not submit their final season date recommendations until the final TAC decision is made by the IPHC (after the publication of the proposed rule) and the states have held their public meetings. There are no other substantive changes from the proposed rule.

NMFS provides notice of the 2012 Pacific halibut GHLs for the charter fishery in IPHC Regulatory Areas 2C and 3A. This notice is necessary to meet the regulatory requirement at 50 CFR 300.65(c) to publish notice announcing the GHLs and to inform the public about the 2012 GHLs for the charter fishery for halibut. The GHLs are benchmark harvest levels for participants in the charter fishery. Regulations at § 300.65(c)(1) specify the GHLs based on the total CEY that is established annually by the IPHC. The total CEY for 2012 is 5,865,000 pounds (2,660.3 mt) in Area 2C, and 19,779,000 pounds (8,971.6 mt) in Area 3A. The corresponding GHLs are 931,000 pounds (422.3 mt) in Area 2C, and 3,103,000 pounds (1,407.5 mt) in Area 3A.

The following annual management measures for the 2012 Pacific halibut fishery are those recommended by the IPHC and accepted by the Secretary of State, with the concurrence of the Secretary. The sport fishing regulations for Area 2A, included in paragraph 26, are consistent with the measures adopted by the IPHC and approved by the Secretary of State, but were developed by the Pacific Fishery Management Council and promulgated by the United States under the Halibut Act.

These Regulations may be cited as the Pacific Halibut Fishery Regulations.

(1) These Regulations apply to persons and vessels fishing for halibut in, or possessing halibut taken from, the maritime area as defined in Section 3.

(2) Sections 3 to 6 apply generally to all halibut fishing.

(3) Sections 7 to 20 apply to commercial fishing for halibut.

(4) Section 21 applies to tagged halibut caught by any vessel.

(5) Section 22 applies to the United States treaty Indian fishery in Subarea 2A-1.

(6) Section 23 applies to customary and traditional fishing in Alaska.

(7) Section 24 applies to Aboriginal groups fishing for food, social and ceremonial purposes in British Columbia.

(8) Sections 25 to 28 apply to sport fishing for halibut.

(9) These Regulations do not apply to fishing operations authorized or conducted by the Commission for research purposes.

(1) In these Regulations,

(a) “authorized officer” means any State, Federal, or Provincial officer authorized to enforce these Regulations including, but not limited to, the National Marine Fisheries Service (NMFS), Canada's Department of Fisheries and Oceans (DFO), Alaska Wildlife Troopers (AWT), United States Coast Guard (USCG), Washington Department of Fish and Wildlife (WDFW), and the Oregon State Police (OSP);

(b) “authorized clearance personnel” means an authorized officer of the United States, a representative of the Commission, or a designated fish processor;

(c) “charter vessel” means a vessel used for hire in sport fishing for halibut, but not including a vessel without a hired operator;

(d) “commercial fishing” means fishing, the resulting catch of which is sold or bartered; or is intended to be sold or bartered, other than (i) sport fishing, (ii) treaty Indian ceremonial and subsistence fishing as referred to in section 22, (iii) customary and traditional fishing as referred to in section 23 and defined by and regulated pursuant to NMFS regulations published at 50 CFR part 300, and (iv) Aboriginal groups fishing in British Columbia as referred to in section 24;

(e) “Commission” means the International Pacific Halibut Commission;

(f) “daily bag limit” means the maximum number of halibut a person may take in any calendar day from Convention waters;

(g) “fishing” means the taking, harvesting, or catching of fish, or any activity that can reasonably be expected to result in the taking, harvesting, or catching of fish, including specifically the deployment of any amount or component part of setline gear anywhere in the maritime area;

(h) “fishing period limit” means the maximum amount of halibut that may be retained and landed by a vessel during one fishing period;

(i) “land” or “offload” with respect to halibut, means the removal of halibut from the catching vessel;

(j) “license” means a halibut fishing license issued by the Commission pursuant to section 4;

(k) “maritime area,” in respect of the fisheries jurisdiction of a Contracting Party, includes without distinction areas within and seaward of the territorial sea and internal waters of that Party;

(l) “net weight” of a halibut means the weight of halibut that is without gills and entrails, head-off, washed, and without ice and slime. If a halibut is weighed with the head on or with ice and slime, the required conversion factors for calculating net weight are a 2 percent deduction for ice and slime and a 10 percent deduction for the head;

(m) “operator,” with respect to any vessel, means the owner and/or the master or other individual on board and in charge of that vessel;

(n) “overall length” of a vessel means the horizontal distance, rounded to the nearest foot, between the foremost part of the stem and the aftermost part of the stern (excluding bowsprits, rudders, outboard motor brackets, and similar fittings or attachments);

(o) “person” includes an individual, corporation, firm, or association;

(p) “regulatory area” means an area referred to in section 6;

(q) “setline gear” means one or more stationary, buoyed, and anchored lines with hooks attached;

(r) “sport fishing” means all fishing other than (i) Commercial fishing, (ii) treaty Indian ceremonial and subsistence fishing as referred to in section 22, (iii) customary and traditional fishing as referred to in section 23 and defined in and regulated pursuant to NMFS regulations published in 50 CFR part 300, and (iv) Aboriginal groups fishing in British Columbia as referred to in section 24;

(s) “tender” means any vessel that buys or obtains fish directly from a catching vessel and transports it to a port of landing or fish processor;

(t) “VMS transmitter” means a NMFS-approved vessel monitoring system transmitter that automatically determines a vessel's position and transmits it to a NMFS-approved communications service provider. 1

(2) In these Regulations, all bearings are true and all positions are determined by the most recent charts issued by the United States National Ocean Service or the Canadian Hydrographic Service.

(1) No person shall fish for halibut from a vessel, nor possess halibut on board a vessel, used either for commercial fishing or as a charter vessel in Area 2A, unless the Commission has issued a license valid for fishing in Area 2A in respect of that vessel.

(2) A license issued for a vessel operating in Area 2A shall be valid only for operating either as a charter vessel or a commercial vessel, but not both.

(3) A vessel with a valid Area 2A commercial license cannot be used to sport fish for Pacific halibut in Area 2A.

(4) A license issued for a vessel operating in the commercial fishery in Area 2A shall be valid for one of the following, but not both:

(a) the directed commercial fishery during the fishing periods specified in paragraph (2) of section 8 and the incidental commercial fishery during the sablefish fishery specified in paragraph (3) of section 8; or

(b) the incidental catch fishery during the salmon troll fishery specified in paragraph (4) of section 8.

(5) A license issued in respect to a vessel referred to in paragraph (1) of this section must be carried on board that vessel at all times and the vessel operator shall permit its inspection by any authorized officer.

(6) The Commission shall issue a license in respect to a vessel, without fee, from its office in Seattle, Washington, upon receipt of a completed, written, and signed “Application for Vessel License for the Halibut Fishery” form.

(7) A vessel operating in the directed commercial fishery or the incidental commercial fishery during the sablefish fishery in Area 2A must have its “Application for Vessel License for the Halibut Fishery” form postmarked no later than 11:59 p.m. on April 30, or on the first weekday in May if April 30 is a Saturday or Sunday.

(8) A vessel operating in the incidental commercial fishery during the salmon troll season in Area 2A must have its “Application for Vessel License for the Halibut Fishery” form postmarked no later than 11:59 p.m. on March 31, or the first weekday in April if March 31 is a Saturday or Sunday.

(9) Application forms may be obtained from any authorized officer or from the Commission.

(10) Information on “Application for Vessel License for the Halibut Fishery” form must be accurate.

(11) The “Application for Vessel License for the Halibut Fishery” form shall be completed and signed by the vessel owner.

(12) Licenses issued under this section shall be valid only during the year in which they are issued.

(13) A new license is required for a vessel that is sold, transferred, renamed, or the documentation is changed.

(14) The license required under this section is in addition to any license, however designated, that is required under the laws of the United States or any of its States.

(15) The United States may suspend, revoke, or modify any license issued under this section under policies and procedures in Title 15, CFR part 904.

(1) The Commission is authorized to establish or modify regulations during the season after determining that such action:

(a) will not result in exceeding the catch limit established preseason for each regulatory area;

(b) is consistent with the Convention between Canada and the United States of America for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, and applicable domestic law of either Canada or the United States; and

(c) is consistent, to the maximum extent practicable, with any domestic catch sharing plans or other domestic allocation programs developed by the United States or Canadian governments.

(2) In-season actions may include, but are not limited to, establishing or modifying the following:

(a) closed areas;

(b) fishing periods;

(c) fishing period limits;

(d) gear restrictions;

(e) recreational bag limits;

(f) size limits; or

(g) vessel clearances.

(3) In-season changes will be effective at the time and date specified by the Commission.

(4) The Commission will announce in-season actions under this section by providing notice to major halibut processors; Federal, State, United States treaty Indian, and Provincial fishery officials; and the media.

The following areas shall be regulatory areas (see Figure 1) for the purposes of the Convention:

(1) Area 2A includes all waters off the states of California, Oregon, and Washington;

(2) Area 2B includes all waters off British Columbia;

(3) Area 2C includes all waters off Alaska that are east of a line running 340° true from Cape Spencer Light (58°11′56″ N. latitude, 136°38′26″ W. longitude) and south and east of a line running 205° true from said light;

(4) Area 3A includes all waters between Area 2C and a line extending from the most northerly point on Cape Aklek (57°41′15″ N. latitude, 155°35′00″ W. longitude) to Cape Ikolik (57°17′17″ N. latitude, 154°47′18″ W. longitude), then along the Kodiak Island coastline to Cape Trinity (56°44′50″ N. latitude, 154°08′44″ W. longitude), then 140° true;

(5) Area 3B includes all waters between Area 3A and a line extending 150° true from Cape Lutke (54°29′00″ N. latitude, 164°20′00″ W. longitude) and south of 54°49′00″ N. latitude in Isanotski Strait;

(6) Area 4A includes all waters in the Gulf of Alaska west of Area 3B and in the Bering Sea west of the closed area defined in section 10 that are east of 172°00′00″ W. longitude and south of 56°20′00″ N. latitude;

(7) Area 4B includes all waters in the Bering Sea and the Gulf of Alaska west of Area 4A and south of 56°20′00″ N. latitude;

(8) Area 4C includes all waters in the Bering Sea north of Area 4A and north of the closed area defined in section 10 which are east of 171°00′00″ W. longitude, south of 58°00′00″ N. latitude, and west of 168°00′00″ W. longitude;

(9) Area 4D includes all waters in the Bering Sea north of Areas 4A and 4B, north and west of Area 4C, and west of 168°00′00″ W. longitude; and

(10) Area 4E includes all waters in the Bering Sea north and east of the closed area defined in section 10, east of 168°00′00″ W. longitude, and south of 65°34′00″ N. latitude.

(1) Section 7 applies only to any person fishing, or vessel that is used to fish for, Area 4E Community Development Quota (CDQ) or Area 4D CDQ halibut, provided that the total annual halibut catch of that person or vessel is landed at a port within Area 4E or 4D.

(2) A person may retain halibut taken with setline gear in Area 4E CDQ and 4D CDQ fishery that are smaller than the size limit specified in section 13, provided that no person may sell or barter such halibut.

(3) The manager of a CDQ organization that authorizes persons to harvest halibut in the Area 4E or 4D CDQ fisheries must report to the Commission the total number and weight of undersized halibut taken and retained by such persons pursuant to section 7, paragraph (2). This report, which shall include data and methodology used to collect the data, must be received by the Commission prior to November 1 of the year in which such halibut were harvested.

(1) The fishing periods for each regulatory area apply where the catch limits specified in section 11 have not been taken.

(2) Each fishing period in the Area 2A directed commercial fishery  2 shall begin at 0800 hours and terminate at 1800 hours local time on June 27, July 13, July 11, July 25, August 8, August 22, September 5, and September 19 unless the Commission specifies otherwise.

(3) Notwithstanding paragraph (7) of section 11, an incidental catch fishery  3 is authorized during the sablefish seasons in Area 2A in accordance with regulations promulgated by NMFS. This fishery will occur between 1200 hours local time on March 17 and 1200 hours local time on November 7.

(4) Notwithstanding paragraph (2), and paragraph (7) of section 11, an incidental catch fishery is authorized during salmon troll seasons in Area 2A in accordance with regulations promulgated by NMFS. This fishery will occur between 1200 hours local time on March 17 and 1200 hours local time on November 7.

(5) The fishing period in Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E shall begin at 1200 hours local time on March 17 and terminate at 1200 hours local time on November 7, unless the Commission specifies otherwise.

(6) All commercial fishing for halibut in Areas 2A, 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E shall cease at 1200 hours local time on November 7.

(1) No person shall engage in fishing for halibut in any regulatory area other than during the fishing periods set out in section 8 in respect of that area.

(2) No person shall land or otherwise retain halibut caught outside a fishing period applicable to the regulatory area where the halibut was taken.

(3) Subject to paragraphs (7), (8), (9), and (10) of section 19, these Regulations do not prohibit fishing for any species of fish other than halibut during the closed periods.

(4) Notwithstanding paragraph (3), no person shall have halibut in his/her possession while fishing for any other species of fish during the closed periods.

(5) No vessel shall retrieve any halibut fishing gear during a closed period if the vessel has any halibut on board.

(6) A vessel that has no halibut on board may retrieve any halibut fishing gear during the closed period after the operator notifies an authorized officer or representative of the Commission prior to that retrieval.

(7) After retrieval of halibut gear in accordance with paragraph (6), the vessel shall submit to a hold inspection at the discretion of the authorized officer or representative of the Commission.

(8) No person shall retain any halibut caught on gear retrieved in accordance with paragraph (6).

(9) No person shall possess halibut on board a vessel in a regulatory area during a closed period unless that vessel is in continuous transit to or within a port in which that halibut may be lawfully sold.

All waters in the Bering Sea north of 55°00′00″ N. latitude in Isanotski Strait that are enclosed by a line from Cape Sarichef Light (54°36′00″ N. latitude, 164°55′42″ W. longitude) to a point at 56°20′00″ N. latitude, 168°30′00″ W. longitude; thence to a point at 58°21′25″ N. latitude, 163°00′00″ W. longitude; thence to Strogonof Point (56°53′18″ N. latitude, 158°50′37″ W. longitude); and then along the northern coasts of the Alaska Peninsula and Unimak Island to the point of origin at Cape Sarichef Light are closed to halibut fishing and no person shall fish for halibut therein or have halibut in his/her possession while in those waters except in the course of a continuous transit across those waters. All waters in Isanotski Strait between 55°00′00″ N. latitude and 54°49′00″ N. latitude are closed to halibut fishing.

(1) The total allowable catch of halibut to be taken during the halibut fishing periods specified in section 8 shall be limited to the net weights expressed in pounds or metric tons shown in the following table:

(2) Notwithstanding paragraph (1), regulations pertaining to the division of the Area 2A catch limit between the directed commercial fishery and the incidental catch fishery as described in paragraph (4) of section 8 will be promulgated by NMFS and published in the Federal Register .

(3) The Commission shall determine and announce to the public the date on which the catch limit for Area 2A will be taken.

(4) Notwithstanding paragraph (1), Area 2B will close only when all Individual Vessel Quotas (IVQs) assigned by DFO are taken, or November 7, whichever is earlier.

(5) Notwithstanding paragraph (1), Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E will each close only when all Individual Fishing Quotas (IFQ) and all CDQs issued by NMFS have been taken, or November 7, whichever is earlier.

(6) If the Commission determines that the catch limit specified for Area 2A in paragraph (1) would be exceeded in an unrestricted 10-hour fishing period as specified in paragraph (2) of section 8, the catch limit for that area shall be considered to have been taken unless fishing period limits are implemented.

(7) When under paragraphs (2), (3), and (6) the Commission has announced a date on which the catch limit for Area 2A will be taken, no person shall fish for halibut in that area after that date for the rest of the year, unless the Commission has announced the reopening of that area for halibut fishing.

(8) Notwithstanding paragraph (1), the total allowable catch of halibut that may be taken in the Area 4E directed commercial fishery is equal to the combined annual catch limits specified for the Area 4D and Area 4E CDQ fisheries. The annual Area 4D CDQ catch limit will decrease by the equivalent amount of halibut CDQ taken in Area 4E in excess of the annual Area 4E CDQ catch limit.

(9) Notwithstanding paragraph (1), the total allowable catch of halibut that may be taken in the Area 4D directed commercial fishery is equal to the combined annual catch limits specified for Area 4C and Area 4D. The annual Area 4C catch limit will decrease by the equivalent amount of halibut taken in Area 4D in excess of the annual Area 4D catch limit.

Area 2B includes combined commercial and sport catch limits which will be allocated by DFO.

(1) It shall be unlawful for any vessel to retain more halibut than authorized by that vessel's license in any fishing period for which the Commission has announced a fishing period limit.

(2) The operator of any vessel that fishes for halibut during a fishing period when fishing period limits are in effect must, upon commencing an offload of halibut to a commercial fish processor, completely offload all halibut on board said vessel to that processor and ensure that all halibut is weighed and reported on State fish tickets.

(3) The operator of any vessel that fishes for halibut during a fishing period when fishing period limits are in effect must, upon commencing an offload of halibut other than to a commercial fish processor, completely offload all halibut on board said vessel and ensure that all halibut are weighed and reported on State fish tickets.

(4) The provisions of paragraph (3) are not intended to prevent retail over-the-side sales to individual purchasers so long as all the halibut on board is ultimately offloaded and reported.

(5) When fishing period limits are in effect, a vessel's maximum retainable catch will be determined by the Commission based on:

(a) The vessel's overall length in feet and associated length class;

(b) The average performance of all vessels within that class; and

(c) The remaining catch limit.

(6) Length classes are shown in the following table:

(7) Fishing period limits in Area 2A apply only to the directed halibut fishery referred to in paragraph (2) of section 8.

(1) No person shall take or possess any halibut that:

(a) With the head on, is less than 32 inches (81.3 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail, as illustrated in Figure 2; or

(b) With the head removed, is less than 24 inches (61.0 cm) as measured from the base of the pectoral fin at its most anterior point to the extreme end of the middle of the tail, as illustrated in Figure 2.

(2) No person on board a vessel fishing for, or tendering, halibut caught in Area 2A shall possess any halibut that has had its head removed.

(1) All halibut that are caught and are not retained shall be immediately released outboard of the roller and returned to the sea with a minimum of injury by:

(a) Hook straightening;

(b) Cutting the gangion near the hook; or

(c) Carefully removing the hook by twisting it from the halibut with a gaff.

(2) Except that paragraph (1) shall not prohibit the possession of halibut on board a vessel that has been brought aboard to be measured to determine if the minimum size limit of the halibut is met and, if sublegal-sized, is promptly returned to the sea with a minimum of injury.

(1) The operator of any vessel that fishes for halibut in Areas 4A, 4B, 4C, or 4D must obtain a vessel clearance before fishing in any of these areas, and before the landing of any halibut caught in any of these areas, unless specifically exempted in paragraphs (10), (13), (14), (15), or (16).

(2) An operator obtaining a vessel clearance required by paragraph (1) must obtain the clearance in person from the authorized clearance personnel and sign the IPHC form documenting that a clearance was obtained, except that when the clearance is obtained via VHF radio referred to in paragraphs (5), (8), and (9), the authorized clearance personnel must sign the IPHC form documenting that the clearance was obtained.

(3) The vessel clearance required under paragraph (1) prior to fishing in Area 4A may be obtained only at Nazan Bay on Atka Island, Dutch Harbor or Akutan, Alaska, from an authorized officer of the United States, a representative of the Commission, or a designated fish processor.

(4) The vessel clearance required under paragraph (1) prior to fishing in Area 4B may only be obtained at Nazan Bay on Atka Island or Adak, Alaska, from an authorized officer of the United States, a representative of the Commission, or a designated fish processor.

(5) The vessel clearance required under paragraph (1) prior to fishing in Area 4C or 4D may be obtained only at St. Paul or St. George, Alaska, from an authorized officer of the United States, a representative of the Commission, or a designated fish processor by VHF radio and allowing the person contacted to confirm visually the identity of the vessel.

(6) The vessel operator shall specify the specific regulatory area in which fishing will take place.

(7) Before unloading any halibut caught in Area 4A, a vessel operator may obtain the clearance required under paragraph (1) only in Dutch Harbor or Akutan, Alaska, by contacting an authorized officer of the United States, a representative of the Commission, or a designated fish processor.

(8) Before unloading any halibut caught in Area 4B, a vessel operator may obtain the clearance required under paragraph (1) only in Nazan Bay on Atka Island or Adak, by contacting an authorized officer of the United States, a representative of the Commission, or a designated fish processor by VHF radio or in person.

(9) Before unloading any halibut caught in Area 4C and 4D, a vessel operator may obtain the clearance required under paragraph (1) only in St. Paul, St. George, Dutch Harbor, or Akutan, Alaska, either in person or by contacting an authorized officer of the United States, a representative of the Commission, or a designated fish processor. The clearances obtained in St. Paul or St. George, Alaska, can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel.

(10) Any vessel operator who complies with the requirements in section 18 for possessing halibut on board a vessel that was caught in more than one regulatory area in Area 4 is exempt from the clearance requirements of paragraph (1) of this section, provided that:

(a) The operator of the vessel obtains a vessel clearance prior to fishing in Area 4 in either Dutch Harbor, Akutan, St. Paul, St. George, Adak, or Nazan Bay on Atka Island by contacting an authorized officer of the United States, a representative of the Commission, or a designated fish processor. The clearance obtained in St. Paul, St. George, Adak, or Nazan Bay on Atka Island can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel. This clearance will list the areas in which the vessel will fish; and

(b) Before unloading any halibut from Area 4, the vessel operator obtains a vessel clearance from Dutch Harbor, Akutan, St. Paul, St. George, Adak, or Nazan Bay on Atka Island by contacting an authorized officer of the United States, a representative of the Commission, or a designated fish processor. The clearance obtained in St. Paul or St. George can be obtained by VHF radio and allowing the person contacted to confirm visually the identity of the vessel. The clearance obtained in Adak or Nazan Bay on Atka Island can be obtained by VHF radio.

(11) Vessel clearances shall be obtained between 0600 and 1800 hours, local time.

(12) No halibut shall be on board the vessel at the time of the clearances required prior to fishing in Area 4.

(13) Any vessel that is used to fish for halibut only in Area 4A and lands its total annual halibut catch at a port within Area 4A is exempt from the clearance requirements of paragraph (1).

(14) Any vessel that is used to fish for halibut only in Area 4B and lands its total annual halibut catch at a port within Area 4B is exempt from the clearance requirements of paragraph (1).

(15) Any vessel that is used to fish for halibut only in Area 4C or 4D or 4E and lands its total annual halibut catch at a port within Area 4C, 4D, 4E, or the closed area defined in section 10, is exempt from the clearance requirements of paragraph (1).

(16) Any vessel that carries a transmitting VMS transmitter while fishing for halibut in Area 4A, 4B, 4C, or 4D and until all halibut caught in any of these areas is landed, is exempt from the clearance requirements of paragraph (1) of this section, provided that:

(a) The operator of the vessel complies with NMFS' vessel monitoring system regulations published at 50 CFR sections 679.28(f)(3), (4) and (5); and

(b) The operator of the vessel notifies NOAA Fisheries Office for Law Enforcement at 800-304-4846 (select option 1 to speak to an Enforcement Data Clerk) between the hours of 0600 and 0000 (midnight) local time within 72 hours before fishing for halibut in Area 4A, 4B, 4C, or 4D and receives a VMS confirmation number.

(1) The operator of any U.S. vessel fishing for halibut that has an overall length of 26 feet (7.9 meters) or greater shall maintain an accurate log of halibut fishing operations. The operator of a vessel fishing in waters in and off Alaska must use one of the following logbooks: the Groundfish/IFQ Daily Fishing Longline and Pot Gear Logbook provided by NMFS; the Alaska hook-and-line logbook provided by Petersburg Vessel Owners Association or Alaska Longline Fisherman's Association; the Alaska Department of Fish and Game (ADF&G) longline-pot logbook; or the logbook provided by IPHC. The operator of a vessel fishing in Area 2A must use either the Washington Department of Fish and Wildlife (WDFW) Voluntary Sablefish Logbook, Oregon Department of Fish and Wildlife (ODFW) Fixed Gear Logbook, or the logbook provided by IPHC.

(2) The logbook referred to in paragraph (1) must include the following information:

(a) The name of the vessel and the State (ADF&G, WDFW, ODFW, or California Department of Fish and Game) or Tribal vessel number;

(b) The date(s) upon which the fishing gear is set or retrieved;

(c) The latitude and longitude coordinates or a direction and distance from a point of land for each set or day;

(d) The number of skates deployed or retrieved, and number of skates lost; and

(e) The total weight or number of halibut retained for each set or day.

(3) The logbook referred to in paragraph (1) shall be:

(a) Maintained on board the vessel;

(b) Updated not later than 24 hours after 0000 (midnight) local time for each day fished and prior to the offloading or sale of halibut taken during that fishing trip;

(c) Retained for a period of two years by the owner or operator of the vessel;

(d) Open to inspection by an authorized officer or any authorized representative of the Commission upon demand; and

(e) Kept on board the vessel when engaged in halibut fishing, during transits to port of landing, and until the offloading of all halibut is completed.

(4) The log referred to in paragraph (1) does not apply to the incidental halibut fishery during the salmon troll season in Area 2A defined in paragraph (4) of section 8.

(5) The operator of any Canadian vessel fishing for halibut shall maintain an accurate log recorded in the British Columbia Integrated Groundfish Fishing Log provided by DFO.

(6) The logbook referred to in paragraph (5) must include the following information:

(a) The name of the vessel and the DFO vessel registration number;

(b) The date(s) upon which the fishing gear is set and retrieved;

(c) The latitude and longitude coordinates for each set;

(d) The number of skates deployed or retrieved, and number of skates lost; and

(e) The total weight or number of halibut retained for each set.

(7) The logbook referred to in paragraph (5) shall be:

(a) Maintained on board the vessel;

(b) Retained for a period of two years by the owner or operator of the vessel;

(c) Open to inspection by an authorized officer or any authorized representative of the Commission upon demand;

(d) Kept on board the vessel when engaged in halibut fishing, during transits to port of landing, and until the offloading of all halibut is completed;

(e) Mailed to the DFO (white copy) within seven days of offloading; and

(f) Mailed to the Commission (yellow copy) within seven days of the final offload if not collected by a Commission employee.

(8) No person shall make a false entry in a log referred to in this section.

(1) No person shall receive halibut caught in Area 2A from a United States vessel that does not have on board the license required by section 4.

(2) No person shall possess on board a vessel a halibut other than whole or with gills and entrails removed, except that this paragraph shall not prohibit the possession on board a vessel of:

(a) Halibut cheeks cut from halibut caught by persons authorized to process the halibut on board in accordance with NMFS regulations published at 50 CFR part 679;

(b) Fillets from halibut offloaded in accordance with section 17 that are possessed on board the harvesting vessel in the port of landing up to 1800 hours local time on the calendar day following the offload;  5 and

(c) Halibut with their heads removed in accordance with section 13.

(3) No person shall offload halibut from a vessel unless the gills and entrails have been removed prior to offloading.

(4) It shall be the responsibility of a vessel operator who lands halibut to continuously and completely offload at a single offload site all halibut on board the vessel.

(5) A registered buyer (as that term is defined in regulations promulgated by NMFS and codified at 50 CFR part 679) who receives halibut harvested in IFQ and CDQ fisheries in Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E, directly from the vessel operator that harvested such halibut must weigh all the halibut received and record the following information on Federal catch reports: date of offload; name of vessel; vessel number (State, Tribal or Federal, but not IPHC vessel number); scale weight obtained at the time of offloading, including the scale weight (in pounds) of halibut purchased by the registered buyer, the scale weight (in pounds) of halibut offloaded in excess of the IFQ or CDQ, the scale weight of halibut (in pounds) retained for personal use or for future sale, and the scale weight (in pounds) of halibut discarded as unfit for human consumption.

(6) The first recipient, commercial fish processor, or buyer in the United States who purchases or receives halibut directly from the vessel operator that harvested such halibut must weigh and record all halibut received and record the following information on State fish tickets: the date of offload; vessel number (State, Tribal or Federal, not IPHC vessel number); total weight obtained at the time of offload including the weight (in pounds) of halibut purchased; the weight (in pounds) of halibut offloaded in excess of the IFQ, CDQ, or fishing period limits; the weight of halibut (in pounds) retained for personal use or for future sale; and the weight (in pounds) of halibut discarded as unfit for human consumption.

(7) The individual completing the State fish tickets for the Area 2A fisheries as referred to in paragraph (6) must additionally record whether the halibut weight is of head-on or head-off fish.

(8) For halibut landings made in Alaska, the requirements as listed in paragraph (5) and (6) can be met by recording the information in the Interagency Electronic Reporting Systems, eLandings in accordance with NMFS regulation published at 50 CFR part 679.

(9) The master or operator of a Canadian vessel that was engaged in halibut fishing must weigh and record all halibut on board said vessel at the time offloading commences and record on Provincial fish tickets or Federal catch reports the date; locality; name of vessel; the name(s) of the person(s) from whom the halibut was purchased; and the scale weight (in pounds) obtained at the time of offloading of all halibut on board the vessel including the pounds purchased, pounds in excess of IVQs, pounds retained for personal use, and pounds discarded as unfit for human consumption.

(10) No person shall make a false entry on a State or Provincial fish ticket or a Federal catch or landing report referred to in paragraphs (5), (6), and (9) of section 17.

(11) A copy of the fish tickets or catch reports referred to in paragraphs (5), (6), and (9) shall be:

(a) Retained by the person making them for a period of three years from the date the fish tickets or catch reports are made; and

(b) Open to inspection by an authorized officer or any authorized representative of the Commission.

(12) No person shall possess any halibut taken or retained in contravention of these Regulations.

(13) When halibut are landed to other than a commercial fish processor, the records required by paragraph (6) shall be maintained by the operator of the vessel from which that halibut was caught, in compliance with paragraph (11).

(14) No person shall tag halibut unless the tagging is authorized by IPHC permit or by a Federal or State agency.

(1) Except as provided in this section, no person shall possess at the same time on board a vessel halibut caught in more than one regulatory area.

(2) Halibut caught in more than one of the Regulatory Areas 2C, 3A, or 3B may be possessed on board a vessel at the same time provided the operator of the vessel:

(a) Has a NMFS-certified observer on board when required by NMFS regulations  6 published at 50 CFR 679.7(f)(4); and

(b) Can identify the regulatory area in which each halibut on board was caught by separating halibut from different areas in the hold, tagging halibut, or by other means.

(3) Halibut caught in more than one of the Regulatory Areas 4A, 4B, 4C, or 4D may be possessed on board a vessel at the same time provided the operator of the vessel:

(a) Has a NMFS-certified observer on board the vessel as required by NMFS regulations published at 50 CFR 679.7(f)(4); or has an operational VMS on board actively transmitting in all regulatory areas fished and does not possess at any time more halibut on board the vessel than the IFQ permit holders on board the vessel have cumulatively available for any single Area 4 regulatory area fished; and

(b) Can identify the regulatory area in which each halibut on board was caught by separating halibut from different areas in the hold, tagging halibut, or by other means.

(4) If halibut from Area 4 are on board the vessel, the vessel can have halibut caught in Regulatory Areas 2C, 3A, and 3B on board if in compliance with paragraph (2).

(1) No person shall fish for halibut using any gear other than hook and line gear, except that vessels licensed to catch sablefish in Area 2B using sablefish trap gear as defined in the Condition of Sablefish Licence can retain halibut caught as bycatch under regulations promulgated by the Canadian Department of Fisheries and Oceans.

(2) No person shall possess halibut taken with any gear other than hook and line gear, except that vessels licensed to catch sablefish in Area 2B using sablefish trap gear as defined by the Condition of Sablefish Licence can retain halibut caught as bycatch under regulations promulgated by the Canadian Department of Fisheries and Oceans.

(3) No person shall possess halibut while on board a vessel carrying any trawl nets or fishing pots capable of catching halibut, except that in Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E, halibut heads, skin, entrails, bones or fins for use as bait may be possessed on board a vessel carrying pots capable of catching halibut, provided that a receipt documenting purchase or transfer of these halibut parts is on board the vessel.

(4) All setline or skate marker buoys carried on board or used by any United States vessel used for halibut fishing shall be marked with one of the following:

(a) The vessel's State license number; or

(b) The vessel's registration number.

(5) The markings specified in paragraph (4) shall be in characters at least four inches in height and one-half inch in width in a contrasting color visible above the water and shall be maintained in legible condition.

(6) All setline or skate marker buoys carried on board or used by a Canadian vessel used for halibut fishing shall be:

(a) Floating and visible on the surface of the water; and

(b) Legibly marked with the identification plate number of the vessel engaged in commercial fishing from which that setline is being operated.

(7) No person on board a vessel used to fish for any species of fish anywhere in Area 2A during the 72-hour period immediately before the fishing period for the directed commercial halibut fishery shall catch or possess halibut anywhere in those waters during that halibut fishing period unless, prior to the start of the halibut fishing period, the vessel has removed its gear from the water and has either:

(a) Made a landing and completely offloaded its catch of other fish; or

(b) Submitted to a hold inspection by an authorized officer.

(8) No vessel used to fish for any species of fish anywhere in Area 2A during the 72-hour period immediately before the fishing period for the directed halibut commercial fishery may be used to catch or possess halibut anywhere in those waters during that halibut fishing period unless, prior to the start of the halibut fishing period, the vessel has removed its gear from the water and has either:

(a) Made a landing and completely offloaded its catch of other fish; or

(b) Submitted to a hold inspection by an authorized officer.

(9) No person on board a vessel from which setline gear was used to fish for any species of fish anywhere in Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E during the 72-hour period immediately before the opening of the halibut fishing season shall catch or possess halibut anywhere in those areas until the vessel has removed all of its setline gear from the water and has either:

(a) Made a landing and completely offloaded its entire catch of other fish; or

(b) Submitted to a hold inspection by an authorized officer.

(10) No vessel from which setline gear was used to fish for any species of fish anywhere in Areas 2B, 2C, 3A, 3B, 4A, 4B, 4C, 4D, or 4E during the 72-hour period immediately before the opening of the halibut fishing season may be used to catch or possess halibut anywhere in those areas until the vessel has removed all of its setline gear from the water and has either:

(a) Made a landing and completely offloaded its entire catch of other fish; or

(b) Submitted to a hold inspection by an authorized officer.

(11) Notwithstanding any other provision in these Regulations, a person may retain, possess and dispose of halibut taken with trawl gear only as authorized by Prohibited Species Donation regulations of NMFS.

The unloading and weighing of halibut may be subject to the supervision of authorized officers to assure the fulfillment of the provisions of these Regulations.

(1) Nothing contained in these Regulations prohibits any vessel at any time from retaining and landing a halibut that bears a Commission external tag at the time of capture, if the halibut with the tag still attached is reported at the time of landing and made available for examination by a representative of the Commission or by an authorized officer.

(2) After examination and removal of the tag by a representative of the Commission or an authorized officer, the halibut:

(a) May be retained for personal use; or

(b) May be sold only if the halibut is caught during commercial halibut fishing and complies with the other commercial fishing provisions of these Regulations.

(3) Externally tagged fish must count against commercial IVQs, CDQs, IFQs, or daily bag or possession limits unless otherwise exempted by State, Provincial, or Federal regulations.

(1) Halibut fishing in Subarea 2A-1 by members of United States treaty Indian tribes located in the State of Washington shall be regulated under regulations promulgated by NMFS and published in the Federal Register .

(2) Subarea 2A-1 includes all waters off the coast of Washington that are north of 46°53′18″ N. latitude and east of 125°44′00″ W. longitude, and all inland marine waters of Washington.

(3) Section 13 (size limits), section 14 (careful release of halibut), section 16 (logs), section 17 (receipt and possession of halibut) and section 19 (fishing gear), except paragraphs (7) and (8) of section 19, apply to commercial fishing for halibut in Subarea 2A-1 by the treaty Indian tribes.

(4) Regulations in paragraph (3) of this section that apply to State fish tickets apply to Tribal tickets that are authorized by Washington Department of Fish and Wildlife.

(5) Section 4 (Licensing Vessels for Area 2A) does not apply to commercial fishing for halibut in Subarea 2A-1 by treaty Indian tribes.

(6) Commercial fishing for halibut in Subarea 2A-1 is permitted with hook and line gear from March 17 through November 7, or until 321,650 pounds (145.9 metric tons) net weight is taken, whichever occurs first.

(7) Ceremonial and subsistence fishing for halibut in Subarea 2A-1 is permitted with hook and line gear from January 1 through December 31, and is estimated to take 24,500 pounds (11.1 metric tons) net weight.

(1) Customary and traditional fishing for halibut in Regulatory Areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E shall be governed pursuant to regulations promulgated by NMFS and published in 50 CFR part 300.

(2) Customary and traditional fishing is authorized from January 1 through December 31.

(1) Fishing for halibut for food, social and ceremonial purposes by Aboriginal groups in Regulatory Area 2B shall be governed by the Fisheries Act of Canada and regulations as amended from time to time.

(1) No person shall engage in sport fishing for halibut using gear other than a single line with no more than two hooks attached; or a spear.

(2) Any minimum overall size limit promulgated under IPHC or NMFS regulations shall be measured in a straight line passing over the pectoral fin from the tip of the lower jaw with the mouth closed, to the extreme end of the middle of the tail.

(3) Any halibut brought aboard a vessel and not immediately returned to the sea with a minimum of injury will be included in the daily bag limit of the person catching the halibut.

(4) No person may possess halibut on a vessel while fishing in a closed area.

(5) No halibut caught by sport fishing shall be offered for sale, sold, traded, or bartered.

(6) No halibut caught in sport fishing shall be possessed on board a vessel when other fish or shellfish aboard said vessel are destined for commercial use, sale, trade, or barter.

(7) The operator of a charter vessel shall be liable for any violations of these Regulations committed by a passenger aboard said vessel.

(1) The total allowable catch of halibut shall be limited to:

(a) 214,110 pounds (97.1 metric tons) net weight in waters off Washington; and

(b) 203,783 pounds (92.4 metric tons) net weight in waters off California and Oregon.

(2) The Commission shall determine and announce closing dates to the public for any area in which the catch limits promulgated by NMFS are estimated to have been taken.

(3) When the Commission has determined that a subquota under paragraph (8) of this section is estimated to have been taken, and has announced a date on which the season will close, no person shall sport fish for halibut in that area after that date for the rest of the year, unless a reopening of that area for sport halibut fishing is scheduled in accordance with the Catch Sharing Plan for Area 2A, or announced by the Commission.

(4) In California, Oregon, or Washington, no person shall fillet, mutilate, or otherwise disfigure a halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.

(5) The possession limit on a vessel for halibut in the waters off the coast of Washington is the same as the daily bag limit. The possession limit on land in Washington for halibut caught in U.S. waters off the coast of Washington is two halibut.

(6) The possession limit on a vessel for halibut caught in the waters off the coast of Oregon is the same as the daily bag limit. The possession limit for halibut on land in Oregon is three daily bag limits.

(7) The possession limit on a vessel for halibut caught in the waters off the coast of California is one halibut. The possession limit for halibut on land in California is one halibut.

(8) The sport fishing subareas, subquotas, fishing dates, and daily bag limits are as follows, except as modified under the in-season actions in 50 CFR 300.63(c). All sport fishing in Area 2A is managed on a “port of landing” basis, whereby any halibut landed into a port counts toward the quota for the area in which that port is located, and the regulations governing the area of landing apply, regardless of the specific area of catch.

(a) The area in Puget Sound and the U.S. waters in the Strait of Juan de Fuca, east of a line extending from 48°17.30′ N. lat., 124°23.70′ W. long. north to 48°24.10′ N. lat., 124°23.70′ W. long., is not managed in-season relative to its quota. This area is managed by setting a season that is projected to result in a catch of 57,393 lb (26 mt).

(i) The fishing season in eastern Puget Sound (east of 123°49.50′ W. long., Low Point) is open May 3-19, 3 days per week, Thursday-Saturday. May 24-28, Thursday-Monday. May 31-June 2, 3 days per week, Thursday through Saturday. The fishing season in western Puget Sound (west of 123°49.50′ W. long., Low Point) is open May 24-28, Thursday-Monday, and open May 31-June 23, 3 days a week, Thursday-Saturday.

(ii) The daily bag limit is one halibut of any size per day per person.

(b) The quota for landings into ports in the area off the north Washington coast, west of the line described in paragraph (2)(a) of section 26 and north of the Queets River (47°31.70′ N. lat.), is 108,030 lb (49 mt).

(i) The fishing seasons are:

(A) Commencing on May 10 and continuing 2 days a week (Thursday and Saturday) until 108,030 lb (49 mt) are estimated to have been taken and the season is closed by the Commission or until May 19.

(B) If sufficient quota remains the fishery will reopen on May 31 and/or June 2 in the entire north coast subarea, continuing 2 days per week (Thursday and Saturday) until there is not sufficient quota for another full day of fishing and the area is closed by the Commission. When there is insufficient quota remaining to reopen the entire north coast subarea for another day, then the nearshore areas described below will reopen for 2 days per week (Thursday and Saturday), until the overall quota of 108,030 lb (49 mt) is estimated to have been taken and the area is closed by the Commission, or until September 30, whichever is earlier. After May 19, any fishery opening will be announced on the NMFS hotline at 800-662-9825. No halibut fishing will be allowed after May 19 unless the date is announced on the NMFS hotline. The nearshore areas for Washington's North Coast fishery are defined as follows:

( 1 ) WDFW Marine Catch Area 4B, which is all waters west of the Sekiu River mouth, as defined by a line extending from 48°17.30′ N. lat., 124°23.70′W. long. north to 48°24.10′ N. lat., 124°23.70′ W. long., to the Bonilla-Tatoosh line, as defined by a line connecting the light on Tatoosh Island, WA, with the light on Bonilla Point on Vancouver Island, British Columbia (at 48°35.73′ N. lat., 124°43.00′ W. long.) south of the International Boundary between the U.S. and Canada (at 48°29.62′ N. lat., 124°43.55′ W. long.), and north of the point where that line intersects with the boundary of the U.S. territorial sea.

( 2 ) Shoreward of the recreational halibut 30-fm boundary line, a modified line approximating the 30-fm depth contour from the Bonilla-Tatoosh line south to the Queets River. The 30-fm depth contour is defined in groundfish regulations at 50 CFR 660.71(e).

(ii) The daily bag limit is one halibut of any size per day per person.

(iii) Recreational fishing for groundfish and halibut is prohibited within the North Coast Recreational Yelloweye Rockfish Conservation Area (YRCA). It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the North Coast Recreational YRCA. A vessel fishing in the North Coast Recreational YRCA may not be in possession of any halibut. Recreational vessels may transit through the North Coast Recreational YRCA with or without halibut on board. The North Coast Recreational YRCA is a C-shaped area off the northern Washington coast intended to protect yelloweye rockfish. The North Coast Recreational YRCA is defined in groundfish regulations at § 660.70(a).

(c) The quota for landings into ports in the area between the Queets River, WA (47°31.70′ N. lat.) and Leadbetter Point, WA (46°38.17′ N. lat.), is 42,739 lb (19.3 mt).

(i) This subarea is divided between the all-waters fishery (the Washington South coast primary fishery), and the incidental nearshore fishery in the area from 47°31.70′ N. lat. south to 46°58.00′ N. lat. and east of a boundary line approximating the 30 fm depth contour. This area is defined by straight lines connecting all of the following points in the order stated as described by the following coordinates (the Washington South coast, northern nearshore area):

(1) 47°31.70′ N. lat, 124°37.03′ W. long;

(2) 47°25.67′ N. lat, 124°34.79′ W. long;

(3) 47°12.82′ N. lat, 124°29.12′ W. long;

(4) 46°58.00′ N. lat, 124°24.24′ W. long.

The south coast subarea quota will be allocated as follows: 40,739 lb (18.4 mt) for the primary fishery and 2,000 lb (0.9 mt) for the nearshore fishery. The primary fishery commences on May 6 and continues 2 days a week (Sunday and Tuesday) until May 22. If the primary quota is projected to be obtained sooner than expected the management closure may occur earlier. Beginning on June 3 the primary fishery will be open at most 2 days per week (Sunday and/or Tuesday) until the quota for the south coast subarea primary fishery is taken and the season is closed by the Commission, or until September 30, whichever is earlier. The fishing season in the nearshore area commences on May 6 and continues seven days per week. Subsequent to closure of the primary fishery the nearshore fishery is open seven days per week, until 42,739 lb (19.3 mt) is projected to be taken by the two fisheries combined and the fishery is closed by the Commission or September 30, whichever is earlier. If the fishery is closed prior to September 30, and there is insufficient quota remaining to reopen the northern nearshore area for another fishing day, then any remaining quota may be transferred in-season to another Washington coastal subarea by NMFS via an update to the recreational halibut hotline.

(ii) The daily bag limit is one halibut of any size per day per person.

(iii) Seaward of the boundary line approximating the 30-fm depth contour and during days open to the primary fishery, lingcod may be taken, retained and possessed when allowed by groundfish regulations at 50 CFR 660.360, Subpart G.

(iv) Recreational fishing for groundfish and halibut is prohibited within the South Coast Recreational YRCA and Westport Offshore YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the South Coast Recreational YRCA and Westport Offshore YRCA. A vessel fishing in the South Coast Recreational YRCA and/or Westport Offshore YRCA may not be in possession of any halibut. Recreational vessels may transit through the South Coast Recreational YRCA and Westport Offshore YRCA with or without halibut on board. The South Coast Recreational YRCA and Westport Offshore YRCA are areas off the southern Washington coast established to protect yelloweye rockfish. The South Coast Recreational YRCA is defined at 50 CFR 660.70(d). The Westport Offshore YRCA is defined at 50 CFR 660.70(e).

(d) The quota for landings into ports in the area between Leadbetter Point, WA (46°38.17′ N. lat.) and Cape Falcon, OR (45°46.00′ N. lat.), is 11,895 lb (5.3 mt).

(i) The fishing season commences on May 3, and continues 3 days a week (Thursday, Friday and, Saturday) until 9,516 lb (4.3 mt) are estimated to have been taken and the season is closed by the Commission or until July 14, whichever is earlier. The fishery will reopen on August 3 and continue 3 days a week (Friday through Sunday) until 2,379 lb (1.1 mt) have been taken and the season is closed by the Commission, or until September 30, whichever is earlier. Subsequent to this closure, if there is insufficient quota remaining in the Columbia River subarea for another fishing day, then any remaining quota may be transferred in-season to another Washington and/or Oregon subarea by NMFS via an update to the recreational halibut hotline. Any remaining quota would be transferred to each state in proportion to its contribution.

(ii) The daily bag limit is one halibut of any size per day per person.

(iii) Pacific Coast groundfish may not be taken and retained, possessed or landed, except sablefish and Pacific cod when allowed by Pacific Coast groundfish regulations, when halibut are on board the vessel.

(e) The quota for landings into ports in the area off Oregon between Cape Falcon (45°46.00′ N. lat.) and Humbug Mountain (42°40.50′ N. lat.), is 191,780 lb (86.9 mt).

(i) The fishing seasons are:

(A) The first season (the “inside 40-fm” fishery) commences May 1 and continues 7 days a week through October 31, in the area shoreward of a boundary line approximating the 40-fm (73-m) depth contour, or until the sub-quota for the central Oregon “inside 40-fm” fishery (23,014 lb (10.4 mt)) or any in-season revised subquota is estimated to have been taken and the season is closed by the Commission, whichever is earlier. The boundary line approximating the 40-fm (73-m) depth contour between 45°46.00′ N. lat. and 42°40.50′ N. lat. is defined at § 660.71(k).

(B) The second season (spring season), which is for the “all-depth” fishery, is open three days week, Thursday through Saturday, on May 10-12, May 17-19, May 24-26, May 31-June 2, 2012. The projected catch for this season is 120,821 lb (54.8 mt). If sufficient unharvested catch remains for additional fishing days, the season will re-open. Depending on the amount of unharvested catch available, the potential season re-opening dates will be: June 14-16, June 28-30, July 12-14, and July 26-28. If NMFS decides in-season to allow fishing on any of these re-opening dates, notice of the re-opening will be announced on the NMFS hotline (206) 526-6667 or (800) 662-9825. No halibut fishing will be allowed on the re-opening dates unless the date is announced on the NMFS hotline.

(C) If sufficient unharvested catch remains, the third season (summer season), which is for the “all-depth” fishery, will be open every other Friday and Saturday on August 3-4, August 17-18, August 31-September 1, September 14-15, September 28-29, October 12-13 and October 26-27, 2012, or until the combined spring season and summer season quotas in the area between Cape Falcon and Humbug Mountain, OR, totaling 168,766 lb (76.5 mt), are estimated to have been taken and the area is closed by the Commission, or October 31, whichever is earlier. NMFS will announce on the NMFS hotline in July whether the fishery will re-open for the summer season in August. No halibut fishing will be allowed in the summer season fishery unless the dates are announced on the NMFS hotline. Additional fishing days may be opened if sufficient quota remains after the last day of the first scheduled open period August 4, 2012. If, after this date, an amount greater than or equal to 60,000 lb (27.2 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, the fishery may re-open every Friday and Saturday, beginning August 17-18, August 31-September 1. If after September 3, an amount greater than or equal to 30,000 lb (13.6 mt) remains in the combined all-depth and inside 40-fm (73-m) quota, and the fishery is not already open every Friday and Saturday, the fishery may re-open every Friday and Saturday, beginning September 14 and 15, and ending October 31. After September 3, the bag limit may be increased to two fish of any size per person, per day. NMFS will announce on the NMFS hotline whether the summer all-depth fishery will be open on such additional fishing days, what days the fishery will be open and what the bag limit is.

(ii) The daily bag limit is one halibut of any size per day per person, unless otherwise specified. NMFS will announce on the NMFS hotline any bag limit changes.

(iii) During days open to all-depth halibut fishing, no Pacific Coast groundfish may be taken and retained, possessed or landed, except sablefish and Pacific cod, when allowed by Pacific Coast groundfish regulations, if halibut are on board the vessel.

(iv) When the all-depth halibut fishery is closed and halibut fishing is permitted only shoreward of a boundary line approximating the 40-fm (73-m) depth contour, halibut possession and retention by vessels operating seaward of a boundary line approximating the 40-fm (73-m) depth contour is prohibited.

(v) Recreational fishing for groundfish and halibut is prohibited within the Stonewall Bank YRCA. It is unlawful for recreational fishing vessels to take and retain, possess, or land halibut taken with recreational gear within the Stonewall Bank YRCA. A vessel fishing in the Stonewall Bank YRCA may not possess any halibut. Recreational vessels may transit through the Stonewall Bank YRCA with or without halibut on board. The Stonewall Bank YRCA is an area off central Oregon, near Stonewall Bank, intended to protect yelloweye rockfish. The Stonewall Bank YRCA is defined at § 660.70(f).

(f) The area south of Humbug Mountain, Oregon (42°40.50′ N. lat.) and off the California coast is not managed in-season relative to its quota. This area is managed on a season that is projected to result in a catch of 6,056 lb (2.7 mt).

(i) The fishing season will commence on May 1 and continue 7 days a week until October 31.

(ii) The daily bag limit is one halibut of any size per day per person.

(1) In all waters off British Columbia:  7

(a) The sport fishing season is from February 1 to December 31;

(b) The daily bag limit is two halibut of any size per day per person.

(2) In British Columbia, no person shall fillet, mutilate, or otherwise disfigure a halibut in any manner that prevents the determination of minimum size or the number of fish caught, possessed, or landed.

(3) The possession limit for halibut in the waters off the coast of British Columbia is three halibut.

(1) In waters in and off Alaska:  8

(a) The sport fishing season is from February 1 to December 31;

(b) The daily bag limit is two halibut of any size per day per person unless a more restrictive bag limit applies in Federal regulations at 50 CFR 300.65; and

(c) No person may possess more than two daily bag limits.

(2) No person on board a charter vessel  9 referred to in 50 CFR 300.65 and fishing in Regulatory Area 2C shall take or possess any halibut that:

(a) With head on, is greater than 45 inches (114.3 cm) and less than 68 inches (172.7 cm) as measured in a straight line, passing over the pectoral fin from the tip of the lower jaw with mouth closed, to the extreme end of the middle of the tail, as illustrated in Figure 3; and

(b) If the halibut is filleted the entire carcass, with head and tail connected as a single piece, must be retained on board the vessel until all fillets are offloaded.

(3) In Convention waters in and off Alaska, no person shall possess on board a vessel, including charter vessels and pleasure craft used for fishing, halibut that has been filleted, mutilated, or otherwise disfigured in any manner, except that:

(a) Each halibut may be cut into no more than 2 ventral pieces, 2 dorsal pieces, and 2 cheek pieces, with skin on all pieces; and

(b) Halibut in excess of the possession limit in paragraph (1)(c) of this section may be possessed on a vessel that does not contain sport fishing gear, fishing rods, hand lines, or gaffs.

These Regulations shall supersede all previous regulations of the Commission, and these Regulations shall be effective each succeeding year until superseded.