The objectives of this amendment are to ensure that:

• Each System institution promotes diversity and inclusion as critical to its success in the long term and incorporates diversity and inclusion as a vital component of its corporate culture;

• Skills and diversity are explicitly included in the assessment of the needs of the board of directors;

• Each System institution assesses the strengths and weaknesses of its current workforce and management; addresses succession planning; and develops strategies and actions to strive for diversity and inclusion within its workforce and management;

• Each System institution considers how it will further the objective of being responsive to the credit needs of all eligible and creditworthy agricultural producers and other eligible persons with specific outreach toward diversity and inclusion; and

• Each System institution's board of directors receives reports on the institution's progress in accomplishing the strategies and actions in its human capital and marketing plans, which will help the board establish accountability and plan new strategies and actions.

On May 25, 2011, the FCA published a proposed rule to amend § 618.8440, which requires the board of directors of each System institution to adopt a business plan. 1 The proposed rule required, among other things, human capital and marketing plans that include outreach toward diversity and inclusion.

We received approximately 75 comment letters from 48 System institutions. We also received two letters from the Farm Credit Council (Council), the trade association for the System. 2 Of the System letters, approximately eight opposed our proposed rule entirely and requested complete withdrawal of the proposal. Most of the remainder of the System commenters supported the premise of the proposed rule to consider human capital and marketing outreach, including diversity and inclusion, in the business plan, but they requested extensive revisions to the final rule or to the explanatory preamble to reduce what they viewed as undue burden. As discussed below, we are making a number of changes in the final rule in response to many of these comments. Many System commenters appeared to misunderstand some of the intended requirements of the proposed rule, because they opposed requirements that the rule would not have imposed. Throughout this preamble, we clarify the requirements of the final rule.

We received approximately 325 comments from non-System commenters, including sustainable agriculture advocacy and assistance groups, academics in the field of sustainable agriculture, small farmers, consumers, and others. The vast majority of these commenters supported the proposed rule. Many of these commenters requested that FCA include a number of specific requirements in the marketing plan provision that would, among other things, require institutions to train potential customers in business planning and financing; develop infrastructure such as cooperatives and farmers' markets; partner with governmental and non-governmental entities and investors for funding local and regional food systems (LRFS); set numerical investment goals for lending to LRFS; and make their marketing goals and progress assessments public.

We also received approximately 40 electronically submitted comment letters that contained the names and addresses of the commenters but were otherwise blank.

The final rule requires each institution to:

• Determine the skills and diversity needs of its board of directors;

• Study and know its workforce, labor market, and management succession plans;

• Reach out to potential employees within its labor market who may not have previously been considered for reasons other than merit;

• Study and know its marketplace, as applicable;

• Reach out to potential borrowers who may not have previously been considered for reasons other than eligibility or creditworthiness; and

• Report annually to its board of directors on the progress the institution has made in accomplishing planned outreach strategies and actions, as applicable.

The rule does not require an institution to:

• Establish quotas—it does not require specific outcomes in employment or lending;

• Complete redundant plans or actions—an institution may use existing documents to satisfy these new planning requirements, provided the existing documents are approved annually by the board;

• Disclose confidential or sensitive information in public documents;

• Hire persons who are not the best qualified for the position for which they are applying;

• Extend credit to any persons who are not eligible, creditworthy, or within the scope of financing rules;

• Favor any type or group of agricultural producers in its underwriting of credit;

• Gather or record data on customer or employee characteristics not currently legally gathered or recorded;

• Implement strategies or actions that extend beyond its marketplace and labor market;

• Develop marketing plans unless it is exercising title III lending authorities or is a direct lender association; or

• Implement strategies or actions inconsistent with existing lending and employment laws and rules or with safety and soundness standards.

For purposes of this rule, we consider diversity and inclusion in employment to mean seeking out and using the talents of people of different backgrounds, experiences, and perspectives to improve the workforce environment and productivity. These differences have a strong influence on how individuals approach challenges and solve problems, make decisions, and identify opportunities.

For purposes of this rule, we consider diversity and inclusion in lending to mean looking beyond the traditional customer base to ensure that all eligible and creditworthy persons have access to credit and related financial services. Where a particular institution needs to focus its outreach depends on the nature of its territory and what groups have traditionally been underrepresented or underserved.

A diverse workforce could aid the System in gaining new customers. A diverse range of employees may more effectively reach a broader and more diverse base of producers, thereby widening the pool of potential customers. Moreover, diverse employees bring different perspectives to an organization and may influence the development of more creative and innovative products and services, which can also increase the customer base.

As discussed in the preamble to the proposed rule, agriculture in America is becoming increasingly diverse. However, some non-System commenters believe that the System is not serving diverse agricultural producers. For example, the Rural Coalition, an alliance of more than 70 rural community-based organizations of African-American, Asian-American, American-Indian, Euro-American, Latino and women farmers, farmworkers and rural communities in the United States, commented that among its members who were contacted, “there exists a universal perception that the Farm Credit System institutions are not accessible to the underserved farmer and have failed to conduct outreach to these communities to educate them regarding the institutions' programs and services.”

Section 1.1(b) of the Farm Credit Act of 1971, as amended (Act), requires the System to be inclusionary in its lending. Section 1.1(b) provides that the System was established as a “permanent system of credit for agriculture which will be responsive to the credit needs of all types of agricultural producers having a basis for credit. * * *” If some producers, including those who would bring diversity to an institution's customer base, have a perception that the System is not available to serve them, then greater outreach is needed. While not every farmer is creditworthy (under any reasonable standard), has credit needs that are within FCA's scope of financing regulations, or is interested in financing his or her operations with debt, unless System institutions reach out to underserved farmers there is no way to know whether they might become customers.

As strong and vibrant supporters of agriculture in America, System direct lender institutions must develop specific marketing plans to reach all potential customers, including those in diverse market segments that may currently be underserved. Institutions must ensure that there are no unnecessary barriers in place, such as lack of employee training, lack of appropriate loan products, or lack of appropriate creditworthiness standards. They must consider programs such as grassroots outreach activities and education efforts that market to diverse and underserved populations regarding business and financial planning and leadership and loan programs for persons who are eligible and creditworthy. In addition, to more effectively reach and serve these potential customers, institutions must continue to strive for diversity and inclusion among their employees, management, and boards of directors, because diverse perspectives within institutions can help increase diversity among customers. Unless System institutions commit to embracing diversity and inclusion in lending, employment, and governance, they may not be able, or understand how, to provide sufficient access to the System's products for all potential eligible and creditworthy customers, and they may risk losing market share and relevance in the marketplace in the long run.

The Council, as well as many System institutions that submitted their own comments, generally endorsed the premise of the proposed rule. Specifically, they recognized that human capital and marketplace outreach, along with diversity and inclusion, are important and appropriate topics to address in business plans.

Several System institutions, as well as one non-System commenter, disagreed with our premise that diversity and inclusion are beneficial for the System and the nation as a whole. These commenters stated that mandating diversity will inevitably result in decisions based on race, sex, and other inappropriate characteristics and toward quotas or measurable results, which the commenters state are illegal, divisive, unfair, and inefficient; these commenters state that the System's focus should simply be on “nondiscriminatory inclusion”—that is, on equal opportunity and on decision-making unbiased by race, sex, or other inappropriate characteristics; that favoring certain groups over other groups is discriminatory and will make the former feel entitled and the latter feel aggrieved; and that demographic imbalances often result from factors other than overt or covert discrimination.

As discussed throughout this preamble and as evident in the regulation language itself, this rule does not mandate particular hiring or lending decisions or specific results. We do not require institutions to make employment or lending decisions based on any factors other than qualifications and creditworthiness. We will not examine for quotas or specific results in employment or lending, and we do not require institutions to establish quotas. We do not require institutions to favor any groups over any other groups. We recognize that to do so would be illegal.

We agree with the commenters that demographic imbalances often result from factors other than overt or covert discrimination. A lack of diversity in a System institution could occur for a whole host of non-discriminatory reasons, many of which are beyond the control of the institution. We do want to be sure, however, that institutions do not have barriers in place that could contribute to such imbalances, even if these barriers are in place for non-discriminatory reasons. Such barriers could include, for example, a lack of employee training, lack of appropriate loan products, lack of appropriate creditworthiness standards, or lack of outreach toward certain populations.

For this reason, we disagree that it is sufficient for System institutions to focus only on “nondiscriminatory inclusion” and equal opportunity. This rule requires institutions to reach out to potential employees within their labor markets who may not have previously been aware of the opportunities to work for the System or whom institutions may not have considered for reasons other than merit. It also requires institutions to reach out to potential customers who may not have been previously aware of the System's services or whom institutions may not have considered for reasons other than eligibility and creditworthiness. This outreach is necessary even if an institution's previous failure to consider these potential customers is not due to discrimination.

A number of System commenters questioned the legal authority of FCA to impose human capital and marketing plan requirements. Some stated that FCA has authority only over safety and soundness matters. Some stated that the regulation is inconsistent with a 1996 congressional mandate that FCA must eliminate regulations that are “unnecessary, unduly burdensome or costly, or not based on law.” And some stated that because Congress has imposed diversity requirements on the housing Government-sponsored enterprises (GSEs) but not on the System, there is no authority for FCA to impose such requirements on the System.

FCA is not limited to regulating safety and soundness matters. FCA has broad authority over all matters relating to the System and the Act. As part of implementing the Act and for safety and soundness reasons, FCA has authority to adopt regulations governing the business planning of System institutions. Moreover, section 1.1(b) of the Act states that the FCS was established as a “permanent System of credit for agriculture which will be responsive to the credit needs of all types of agricultural producers having a basis for credit. * * *” While this provision does not expressly mention diversity and inclusion, it does state Congress' desire that the FCS be responsive to all types of creditworthy agricultural producers. Moreover, the passage of a law imposing diversity requirements on the housing GSEs does not limit FCA's authority to impose business planning requirements, including in the area of diversity and inclusion, on System institutions.

Regarding the 1996 congressional mandate to review and eliminate unnecessary regulations, we have discussed above why this regulation is necessary. With the clarifications we have made to the regulation text and throughout this preamble, we believe compliance with the rule will not be unduly burdensome or costly.

Several System commenters requested that we modify proposed § 618.8440(b)(7) and (b)(8) to each be one-sentence requirements. They suggested that § 618.8440(b)(7) should simply require that the business plan include a summary of the human capital plan that addresses diversity, inclusion, affirmative action, and management succession. And they suggested that § 618.8440(b)(8) should simply require that the business plan include a summary of the marketing plan that addresses diversity, inclusion, and marketplace outreach.

We believe, in order to fulfill the objectives of this rule, the human capital and marketing plans must include all the items that we have required. We do not believe a requirement that the human capital plan simply address diversity, inclusion, affirmative action, and management succession, or that the marketing plan simply address diversity, inclusion, and marketplace outreach, is sufficient.

To eliminate unnecessary burden, we have revised § 618.8440(b)(7) and (b)(8) to provide that items required to be included in the human capital plan and marketing plan may be contained in other documents that are approved by the board and adopted annually, as long as those items are summarized in, and incorporated by reference into, the human capital plan and marketing plan, respectively.

Accordingly, if an institution has separate documents (such as section 4.38 affirmative action program (AAP) plans or Young, Beginning, and Small (YBS) farmer and rancher program documents) that contain the items that are required to be included in the human capital plan or marketing plan component of the business plan, the institution can use those other documents to satisfy the business plan requirements, as long as the other documents are approved by the board annually (as the business plan itself is) and the items are summarized in, and incorporated by reference into, the human capital plan or marketing plan components of the business plan. If the separate documents do not include these items, however, or if the board does not approve these separate documents, then the board will have to include the required items in the human capital plan and marketing plan components of the business plan.

Additionally, to further address concerns about burden, we have made a number of changes to the regulation in response to specific requests made by commenters. For example, among other changes, we have revised language that was viewed as requiring redundant plans or actions. We have removed language that was viewed as requiring quotas or quantifiable results. We have added language allowing confidential or sensitive information to be contained in non-public documents. And we have limited the marketing plan requirements to System institutions in their exercise of title III lending authorities and to direct lender associations.

In addition, we clarify in this preamble other areas where commenters were concerned about burden. For example, among other clarifications, we have explained what we mean by the term “diversity.” We have made clear that institutions are not required to: Hire persons who are not considered the best qualified for the position for which they are applying; extend credit to persons who are not eligible, creditworthy, or within the scope of financing rules; favor any type or group of agricultural producers in their credit underwriting; gather or record data on customer or employee characteristics not currently legally gathered or recorded; or implement strategies or actions inconsistent with existing lending and employment rules and laws or with safety and soundness standards.

A number of System commenters stated that they would be at legal risk if they were required to ask potential job applicants or potential customers about demographic information. Because the rule does not require institutions to collect this information, the rule does not create this legal risk.

A number of System commenters also questioned how the requirements of this rule fit in with other requirements, including AAP planning, YBS activities, the various equal employment laws, the Equal Credit Opportunity Act (ECOA), and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). 3 As we now explain, this rule should not be interpreted to impose requirements that are redundant or inconsistent with any other laws.

System commenters expressed concern that this rule imposes requirements that are already included among AAP planning and YBS program requirements. As we explained in the preamble to the proposed rule, 4 there may be some overlap between the information that is contained in existing AAP plans and YBS programs and the information that is required to be in the human capital and marketing plans.

To eliminate this redundancy, as discussed above, we have revised § 618.8440(b)(7) and (b)(8) to provide that items required to be included in the human capital plan and marketing plan may be contained in other documents that are approved by the board and adopted annually, as long as those items are summarized in, and incorporated by reference into, the human capital plan and marketing plan, respectively. These other documents could include an AAP plan or YBS program documents.

System commenters also expressed concern that compliance with this regulation would require violation of the equal employment laws and the ECOA, and they pointed out that the Dodd-Frank Act does not yet have implementing regulations authorizing activity they believe the proposed rule would require. These commenters were primarily focused on what they believed was a requirement to collect demographic data from job applicants/employees and credit applicants/borrowers.

As discussed throughout this preamble, the rule does not require institutions to collect any data on employee or customer characteristics. Therefore, the rule does not conflict with any prohibition on data gathering in the equal employment laws or the ECOA. Moreover, these laws actually require the collection of data in some situations. Consistent with these laws, an institution can choose to use the data collected as required to assess its employment of diverse employees, the diversity needs of its board of directors, and its lending to diverse borrowers.

In addition, as discussed in the preamble to the proposed rule, once the Consumer Financial Protection Bureau (CFPB) issues implementing regulations, 5 the Dodd-Frank Act will require financial institutions to ask all business applicants applying for credit whether they are women-owned, minority-owned, or small businesses. While applicants may choose to withhold this information, institutions can choose to use any information received to assess their lending to diverse borrowers.

The proposed regulation itself did not define diversity. In the preamble to the proposed rule, we stated that diversity is best thought of as the inclusion of all individuals rather than as simply a list of demographic criteria, and we listed several characteristics that might indicate diversity.

We did not intend to limit diversity to these characteristics or to suggest that these characteristics are more important than any others. Instead, our intent was to demonstrate that diversity is all-inclusive and is broader than the characteristics protected by the various equal employment and fair lending laws. 6

Many System commenters questioned this definition. They wondered whether and how we expected them to determine the listed characteristics and whether we expected them to make employment or lending decisions on the basis of those characteristics. They stated that asking this information of potential employees or borrowers or making decisions on these bases is, in many cases, offensive or even illegal.

As stated above, our intent was to show that diversity is broad and all-inclusive, not to create a list of characteristics to be given special focus. Also, the rule does not require the gathering or recording of data on employee or borrower characteristics that are not currently legally gathered or recorded and does not require specific outcomes or the favoring of particular persons in employment or lending. What the rule does require institutions to do, in pertinent part, is to strive for diversity and inclusion within their workforce and management and to market their products and services to all eligible and creditworthy persons, with specific outreach toward diversity and inclusion.

Like the proposed rule, the final rule itself does not define diversity. As discussed above, for purposes of this rule, we consider diversity and inclusion in employment to mean seeking out and using the talents of people of different backgrounds, experiences, and perspectives to improve the workforce environment and productivity. We consider diversity and inclusion in lending, for purposes of this rule, to mean looking beyond the existing customer base to ensure that all eligible and creditworthy persons have access to System credit and related financial services.

Accordingly, each institution must ensure that it has plans to reach out to all potential employees and customers as is appropriate for its territory. Institutions are not required to gather data that is not legal to gather, favor persons in particular groups, or satisfy quotas in employment or lending.

A number of System commenters requested that FCA allow institutions to exercise flexibility and discretion in how they implement the requirements of the rule. Institutions differ in terms of size, employment needs, demographics in their territory, and nature of farming in their territory. Therefore, diversity will not look the same across the System.

A number of System commenters were also concerned that FCA and its examiners would impose requirements that are not found in the rule or would use FCA's suggestions in the preamble to the proposed rule regarding tools institutions could use to assist in complying with their planning requirements as a checklist for determining compliance.

Moreover, a number of commenters stated that some of FCA's suggestions are not relevant to the System or are too rigid. Commenters stated, for example, that data from the Census of Agriculture, which FCA had suggested as a possible source of information about potential customers, does not accurately represent the System's relevant markets because it includes data pertaining to ineligible persons, non-creditworthy persons, persons who would be disqualified based on scope of financing regulations, and persons who do not use debt to finance their operations.

As another example, several System commenters objected to some of FCA's specific suggestions for how to overcome barriers for advancing diversity and inclusion within the corporate culture, such as including diversity and inclusion in the mission statement.

FCA recognizes that System institutions vary widely in their size, needs, and demographics, among other areas of difference. A one-size-fits-all approach to compliance with this rule is not appropriate either for System institutions or for FCA. 7 The rule requires institutions to engage in business planning in the specified areas. Accordingly, FCA examiners will determine whether institutions have engaged in this planning and will evaluate institutions' good faith efforts in implementing the strategies and actions identified in the plans. Nevertheless, the rule permits institutions to engage in the required business planning in any reasonable manner, and we will not examine for specific outcomes or results in employment or lending.

In addition, our suggestions in the preamble to the proposed rule regarding tools institutions can use to assist with their compliance are not requirements. We included them in our preamble to the proposed rule to provide ideas and to share actions that other institutions have taken. We encourage institutions to use the suggestions that are appropriate, to set aside the suggestions that are not, and to come up with their own approaches to fit their own characteristics.

Finally, as discussed throughout this preamble, it is important to keep in mind that this rule does not require specific goals or quantifiable results, and our compliance examination will be qualitative rather than quantitative. We suggested the use of the Census of Agriculture data not so institutions could compare their lending against that data but so they could know and would be able to describe the characteristics of their chartered territories by market segment, including the characteristics of demography, geography, and types of agriculture practiced, as the regulation requires. With this information, institutions can determine whether there may be potential eligible customers who may be better reached with a different type of marketing strategy. If institutions believe other reliable data would better provide this information, they may use that data instead.

In the preamble to our proposed rule, we noted that the pool of potential eligible and creditworthy FCS customers is becoming increasingly diverse. We observed that agriculture today consists of men and women, the old and the young, and a variety of racial and ethnic backgrounds. We urged institutions to look to all kinds of farming operations—from large farmers, to small farmers, to farmers who operate within local food systems--to find potential eligible and creditworthy borrowers who may not be part of the institution's customer base and who may be underserved.

We received a number of comments responding specifically to our reference to local food systems, from both System and non-System commenters. Commenters identified four major areas of concern.

First, many System commenters were concerned that the term “local food systems” was undefined. A number of non-System commenters suggested that we should adopt the definition of “local and regional food producers” from the 2008 Farm Bill. In the preamble to the proposed rule, we stated that local food systems typically involve small farmers producing heterogeneous organic or specialty crops, and short supply chains in which farmers also perform marketing functions, including storage, packaging, transportation, distribution, and advertising. 8 In the context of this rule, however, it is unnecessary to specifically define “local food systems,” because this rule does not require specific marketing targeted toward local food systems. Rather, the rule requires strategies and actions to market to all eligible and creditworthy persons, with specific outreach toward diversity and inclusion. Our reference to local food systems was to provide an example of a potentially underserved market segment where diversity in farming may be found. Reaching out to persons who operate in local food systems is one of many potential approaches to finding new eligible and creditworthy customers. Consistent with this effort, FCA's regulatory performance plan specifically includes a project to consider changes to our policy guidance for providing credit and related services to all eligible and creditworthy agricultural producers, including identifying any barriers to efficiently and cost-effectively providing credit for newer products or marketing systems such as local foods and organic agriculture. 9

Second, many System commenters stated that FCA should not favor a particular type of agriculture and should not suggest that lending to a particular type of agricultural practice increases diversity. They commented that FCA should not distinguish between types of crops produced or the methods or location of production. As just discussed, the rule requires institutions to develop plans as to how they reach out to and serve all eligible and creditworthy persons in their territories. This means outreach and service to all market segments and to all persons within those segments, looking at characteristics that include demography, geography, and types of agriculture practiced. Our use of the term “local food systems” was meant to illustrate an example of a potentially underserved market segment where diversity in farming may be found. There may be diverse, eligible, and creditworthy persons operating within local food systems--as well as within other types of agricultural operations--who are not currently being served.

Third, many System commenters stated that many persons who are involved in local food systems may not be eligible for System credit, or that much of their credit needs may not be within FCA's scope of financing regulations, because they may not be full-time, bona fide agricultural producers. Farmers who produce agricultural products for sale directly to consumers or local intermediaries (restaurants, schools, hospitals, etc.) comply with the definition of bona fide farmer in § 613.3000(a)(1) by virtue of growing an agricultural product, and they need not be full-time producers to be considered bona fide. 10 System institutions are authorized to serve only persons who are eligible, and this rule does not require marketing plans to address service toward persons who are not eligible.

The scope of financing that a System institution can provide to a particular borrower is governed by § 613.3005. Under that provision, all bona fide farmers and ranchers may receive full credit, to the extent of creditworthiness, for agricultural needs. The degree of a borrower's involvement in agricultural production determines the amount of non-agricultural credit (also referred to as “other credit needs”) that a System institution may extend to the borrower. FCA has previously addressed the issue of scope of financing in Examination Bulletin: FCA 2006-2  11 and Revised Bookletter BL-040 (interpreting “sound and constructive credit” for YBS farmers). 12 We encourage System institutions to review these documents for guidance in determining the scope of financing for all types of agricultural producers.

There may be loans that an institution cannot practically make because of FCA's scope of lending regulations. Institutions should, however, evaluate their lending practices to ensure that there are no unnecessary barriers in place, such as lack of employee training or lack of appropriate loan products. As discussed above, FCA's regulatory performance plan specifically includes a project to consider changes to our policy guidance for providing credit and related services to all eligible and creditworthy agricultural producers, including identifying any barriers to efficiently and cost-effectively providing credit for newer products or marketing systems such as local foods.

Finally, many System commenters stated that certain potential customers, including some involved in local food systems, are not creditworthy and that loans to them could create safety and soundness concerns. FCA recognizes that, as with farmers practicing other types of agriculture, some farmers involved in the local food system may not be creditworthy. The rule does not impose any lending requirements, and institutions are not required to make loans that pose safety and soundness risks. Other farmers in the local food system may well be creditworthy based on their background and experience. Institutions should ensure that their credit standards are appropriate and do not impose unnecessary barriers to producers in the local food system.

Some farmers who operate within the local food system are also YBS farmers. The methods suggested in § 614.4165(c)(4), as further explained in BL-040, to ensure that credit and services offered to YBS farmers are provided in a safe and sound manner and within an institution's risk-bearing capacity could benefit YBS borrowers within the local food system.

We received hundreds of comments from non-System commenters supporting small- and mid-sized farmers and ranchers producing for local and regional food markets, farmers' markets, organic markets, and community-supported agriculture. These commenters stated that these farmers—many of whom are socially disadvantaged, are nontraditional producers, or are from non-farming backgrounds—promote healthy farming and eating and environmental responsibility. These commenters stated that these producers are crucial for both public health and national security. Traditional lending models may not fit these producers, however, and limited access to capital is a crucial barrier to their success.

These commenters suggested that FCA include a number of specific requirements in our marketing plan regulation that would require institutions to do the following:

• Train potential borrowers on how to obtain funding;

• Develop and refer potential borrowers to programs to assist them with business planning;

• Develop infrastructure such as cooperatives, farmers' markets, and training programs;

• Increase their knowledge of sustainable agriculture and LRFS;

• Partner with governmental and non-governmental entities and investors to fund LRFS;

• Examine their policies to identify areas where rules may be unnecessarily shutting out potential borrowers;

• Analyze the characteristics of current borrowers to provide baseline data for assessments of achieving diversity and inclusion of LRFS and socially disadvantaged producers;

• Set minimum investment goals for LRFS;

• Make marketing goals and progress assessments public; and

• Add LRFS producers to their boards.

We are not imposing these specific requirements in our regulation. Consideration of requirements such as these is beyond the scope of this regulation project. System institutions may choose to implement these measures as appropriate for the types of agriculture in their territories. Moreover, as discussed above, we are committed to studying these ideas further and to considering future guidance for System institutions.

Many System commenters urged FCA to clarify the final rule to ensure it promotes efforts toward outreach rather than requiring quotas or quantifiable results in employment and lending. On the other hand, many non-System commenters urged FCA to require institutions to collect and quantify baseline data and, among other things, to evaluate to what extent their borrower base reflects their marketplace and to set minimum investment goals for lending to certain groups. As discussed throughout this preamble, this final rule does not contemplate quotas or quantifiable results in either employment or lending. We agree with the System commenters that this is inappropriate because it is legally problematic and may be difficult both to achieve and to measure. 13

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0231), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number (USCG-2011-0231) in the “Search” box and click “Search.” Then click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope.

We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2011-0231) in the “Search” box and click “Search.” Then click “Open Docket Folder” on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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

We do not now plan to hold a public meeting. But, you may submit a request for a public meeting using one of the four methods specified under ADDRESSES . Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

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

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

The legal basis for this rule is: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define anchorage grounds.

This rule is intended to reduce the risk of vessel collisions by creating three special anchorage areas in the western, central and eastern portions of Wells Harbor creating anchorage for approximately 150 vessels.

On January 6, 2012, we established three special anchorage areas in Wells Harbor, Wells, Maine through a published final rule (76 FR 76295). This action was necessary to facilitate safe navigation in that area and provide safe and secure anchorages for vessels not more than 20 meters in length. The Coast Guard received no comments on this published final rule during the rulemaking process for it.

The Marine Chart Division of the National Oceanographic and Atmospheric Administration (NOAA) advised the Coast Guard that the coordinates in the final rule for the three special anchorage areas were out of sequence. When plotted individually and then connected, the coordinates are correct. However, in this case, the Coast Guard directed the mariner to plot the coordinates in a clockwise direction. When the mariner plots the anchorage as directed, the lines will cross and an hour-glass shaped anchorage area is formed instead of a more typical box shaped anchorage area. This is caused because the last two positions in each anchorage area are out of sequence. As a result, the mariner may become confused about what is the proper anchorage area. This rule is intended to put the coordinates for the three special anchorage areas in the proper clockwise sequence and to form a box shaped anchorage area.

All coordinates are North American Datum 1983 (NAD 83).

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This determination is based in part upon the fact that Coast Guard received no comments on the published final rule that established the anchorage in this area with the out of sequence coordinates. The Coast Guard expects minimal additional cost impacts on fishing, or recreational boats anchoring because this rule would not affect normal surface navigation. Although this regulation may have some impact on the public, the potential impact will be minimized for the following reasons: Normal surface navigation will not be affected as this area has been historically used as a mooring field by the Town of Wells and the number of vessels using the anchorage is limited due to depth (less than or equal to 18 feet).

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of recreational and small fishing vessels intending to anchor in Wells Harbor.

The rule would not have a significant economic impact on a substantial number of small entities for the following reasons: normal surface navigation will not be affected as this area has been historically used as a mooring field by the Town of Wells and the number of vessels using the anchorage is limited due to depth (less than or equal to 18 feet).

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(a) of the Instruction because it involves an editorial procedure for these special anchorage grounds. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:

The Washington State Department of Transportation has requested that University Bridge remain closed to vessel traffic to facilitate safe passage of participants of the Beat the Bridge charity event. Beat the Bridge is an annual foot race held in Seattle, WA to benefit diabetes research. The race course passes over University Bridge. University Bridge crosses the Lake Washington Ship Canal at mile 4.3 and while in the closed position provides 30 feet of vertical clearance throughout the navigation channel and 45 feet of vertical clearance through the center of the bridge; vertical clearance referenced to the Mean Water Level of Lake Washington. Vessels which do not require a bridge opening may continue to transit beneath the bridge during this closure period. Under normal conditions this bridge operates in accordance with 33 CFR 117.1051(d) which requires the bridge to open on signal, except that the bridge need not open for vessels less than 1,000 gross tons from 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m. Monday through Friday. This deviation period is from 8 a.m. on Sunday, May 20, 2012 through 9:30 a.m. on Sunday, May 20, 2012. The deviation allows the bascule span of the University Bridge to remain in the closed position and need not open for maritime traffic from 8 a.m. through 9:30 a.m. on May 20, 2012. The bridge shall operate in accordance to 33 CFR 117.1051(d) at all other times. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft. Mariners will be notified and kept informed of the bridge's operational status via the Coast Guard Notice to Mariners publication and Broadcast Notice to Mariners as appropriate. The draw span will be required to open, if needed, for vessels engaged in emergency response operations during this closure period.

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

The Norfolk Southern Corporation, who owns and operates this single-leaf bascule drawbridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.997(d) to facilitate mechanical repairs.

The Norfolk Southern #7 Bridge, at AIWW mile 5.8, across the Elizabeth River (Southern Branch) in Chesapeake, VA, has a vertical clearance in the closed position to vessels of 7 feet above mean high water.

Under the regular schedule set out at 33 CFR 117.997(d)(2), the Norfolk Southern #7 Bridge, at AIWW mile 5.8, across the Elizabeth River (Southern Branch) in Chesapeake, VA, shall be left in the open position to vessels and will only be closed for the passage of trains and to perform periodic maintenance.

To facilitate replacement of the lift joints of the draw span, the bridge will be maintained in the closed-to-navigation position each day from 6 a.m. to 8 p.m. on May 8, 2012 through May 10, 2012.

Vessels that can pass under the bridge without a bridge opening may do so at all times. The bridge normally operates in the open position with several vessels transiting a week. There are no alternate routes for vessels transiting this section of the Elizabeth River.

Normal users of the waterway in the month of May are primarily recreational boats along with tug and barge traffic in the daytime. The bridge will be unable to open for emergencies.

To ensure that waterway users are aware of the closure, the Coast Guard will issue a Local and Broadcast Notices to Mariners to allow mariners to schedule their transits accordingly.

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

The Minnesota Department of Transportation requested a temporary deviation for the Stillwater Highway Drawbridge, across the St. Croix River, mile 23.4, at Stillwater, Minnesota to be operated on a restricted opening schedule from October 15, 2012 until December 31, 2012; as follows:

From 8:00 a.m. October 15, 2012 through 7:59 a.m. October 20, 2012, lift span will remain in the closed-to-navigation position.

From 8:00 a.m. October 20, 2012, through 5:59 p.m. October 21, 2012, lift span will open with 24-hour advance notice.

From 6:00 p.m. October 21, 2012, through 7:59 a.m. October 27, 2012, lift span will remain in the closed-to-navigation position.

From 8:00 a.m. October 27, 2012, through 5:59 p.m. October 28, 2012, lift span will open with 24-hour advance notice.

From 6:00 p.m. October 28, 2012, through 7:59 a.m. November 3, 2012, lift span will remain in the closed-to-navigation position.

From 8:00 a.m. November 3, 2012, through 5:59 p.m. November 4, 2012, lift span will open with 24-hour advance notice.

From 6:00 p.m. November 4, 2012, through 7:59 a.m. December 31, 2012, lift span will remain in the closed-to-navigation position.

The Stillwater Highway Drawbridge currently operates in accordance with 33 CFR 117.667(b), which states specific seasonal and commuter hours operating requirements.

There are no alternate routes for vessels transiting this section of the St. Croix River. For emergency vessels, there will be a contingency plan in place.

The Stillwater Highway Drawbridge, in the closed-to-navigation position, provides a vertical clearance of 10.9 feet above normal pool. Navigation on the waterway primarily consists of commercial sightseeing/dinner cruise boats and recreational watercraft. This temporary deviation has been coordinated with waterway users. No objections were received.

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

The Virginia Department of Transportation, who owns and operates this vertical-lift type bridge, has requested a temporary deviation from the current operating regulations to facilitate structural repairs.

Under the regular operating schedule, the SR 156/Benjamin Harrison Memorial Bridge, at mile 65.0, across the James River, at Hopewell, VA opens on signal as required by 33 CFR 117.5 and has vertical clearances in the full open and closed positions of 145 feet and 50 feet above mean high water, respectively.

Under this temporary deviation, the drawbridge will be maintained in the closed to navigation position to facilitate repairs to the skew couplings that keep the vertical lift portion of the bridge balanced. The lift span will be closed to vessels from 8 a.m. to 4 p.m., on Tuesday, May 8, 2012. The bridge will be unable to open for emergencies.

The James River caters to a variety of vessels from freighters to tug and barge traffic to recreational vessels. The Coast Guard has carefully coordinated the restrictions with commercial and recreational waterway users. Additionally, the Coast Guard will inform unexpected users of the waterway through our Local and Broadcast Notice to Mariners of the closure period for the bridge so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation.

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

On February 27, 2012, we published a notice of proposed rulemaking (NPRM) entitled “Safety Zone; Patapsco River, Northwest and Inner Harbors, Baltimore, MD” in the Federal Register (77 FR 11434). We received one comment on the proposed rule. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Due to the need for immediate action, the restriction of vessel traffic is necessary to protect life, property and the environment; therefore, a 30-day notice is impracticable. Delaying the effective date would be contrary to the safety zone's intended objectives of protecting persons and vessels, and enhancing public and maritime safety.

Historic Ships in Baltimore is planning to conduct a “turn-around” ceremony involving the sloop-of-war USS CONSTELLATION in Baltimore, Maryland on May 24, 2012. Planned events include a three-hour, round-trip tow of the USS CONSTELLATION in the Port of Baltimore, consisting of an onboard salute with navy pattern cannon while the historic vessel is positioned off the Fort McHenry National Monument and Historic Site. Beginning at 3 p.m., the historic Sloop-of-War USS CONSTELLATION will be towed “dead ship,” which means that the vessel will be underway without the benefit of mechanical or sail propulsion. The return dead ship tow of the USS CONSTELLATION to its berth in the Inner Harbor is expected to occur immediately upon execution of a tug-assisted turn-around of the USS CONSTELLATION on the Patapsco River near Fort McHenry. The Coast Guard anticipates a large recreational boating fleet during this event, scheduled on a late Thursday afternoon before the Memorial Day Holiday weekend in Baltimore, Maryland. Operators should expect significant vessel congestion along the planned route. In the event of inclement weather, the “turn-around” will be rescheduled for May 31, 2012.

To address safety concerns during the event, the Captain of the Port Baltimore will establish a safety zone upon certain waters of the Patapsco River, Northwest Harbor and Inner Harbor. The safety zone will help the Coast Guard provide a clear transit route for the participating vessels, and provide a safety buffer around the participating vessels while they are in transit. Due to the need to promote maritime safety and protect participants and the boating public in the Port of Baltimore immediately prior to, during, and after the scheduled event, a safety zone is prudent.

The Coast Guard received one comment in response to the NPRM. No public meeting was requested and none was held. What follows is a review of, and the Coast Guard's response to, the issue that was presented by the commenter concerning the proposed regulations.

The commenter, Mr. Christopher Rowsom of Historic Ships in Baltimore, who is the event organizer, stated that the date for the USS Constellation Turn-around Cruise was posted incorrectly as May 25, the actual date for the event is Thursday, May 24, 2012, and all event times remain the same.

We are adjusting the timing accordingly. We believe that changing the effective date in the rule as suggested by the commenter, from May 25 to May 24, will not adversely affect waterway users in the Patapsco River, Northwest Harbor and Inner Harbor on May 24, 2012.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this safety zone restricts vessel traffic through the affected area, the effect of this regulation will not be significant due to the limited size and duration that the regulated area will be in effect. In addition, notifications will be made to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which might be small entities: the owners or operators of vessels intending to operate or transit through or within the safety zone during the enforcement period. The safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. The safety zone is of limited size and duration. Smaller vessels not constrained by their draft, which are more likely to be small entities, may transit around the safety zone. Maritime advisories will be widely available to the maritime community before the effective period.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing a temporary safety zone. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

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

The Coast Guard will enforce the safety zone; 33 CFR 165.933—Chicago Harbor, Navy Pier East, Chicago, IL for the following events:

(1) Navy Pier Fireworks; on May 20, 2012 from 9:00 p.m. through 11:00 p.m.

(2) Chicago Match Race; on June 1, 2012 from 8:00 a.m. through 8:00 p.m.; on June 2, 2012 from 8:00 a.m. through 8:00 p.m.; on June 3, 2012 from 8:00 a.m. through 8:00 p.m.; on July 11, 2012 from 8:00 a.m. through 8:00 p.m.; on July 12, 2012 from 8:00 a.m. through 8:00 p.m.; on July 13, 2012 from 8:00 a.m. through 8:00 p.m.; and on July 14, 2012 from 8:00 a.m. through 8:00 p.m.

All vessels must obtain permission from the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative to enter, move within or exit the safety zone. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

This notice is issued under authority of 33 CFR 165.933 Safety Zone, Chicago Harbor, Navy Pier East, Chicago IL and 5 U.S.C. 552 (a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with advance notification of these enforcement periods via broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port, Sector Lake Michigan, will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone established by this section is suspended. If the Captain of the Port, Sector Lake Michigan, determines that the safety zone need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the safety zone. The Captain of the Port, Sector Lake Michigan, or his or her on-scene representative may be contacted via VHF Channel 16.

The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930. Specifically, the Coast Guard will enforce this safety zone between Mile Marker 296.1 to Mile Marker 296.7 on all waters of the Chicago Sanitary and Ship Canal. Enforcement will occur from 7:00 a.m. until 11:00 a.m. and 1:00 p.m. until 5:00 p.m. on:

This enforcement action is necessary because the Captain of the Port, Sector Lake Michigan has determined that the U.S. Army Corps of Engineers' post-maintenance testing of Barriers IIA and IIB pose risks to life and property. The combination of vessel traffic and the testing operations in the water makes the controlling of vessels through the impacted portion of the Chicago Sanitary and Ship Canal necessary to prevent injury and property loss.

In accordance with the general regulations in § 165.23 of this part, entry into, transiting, mooring, laying up or anchoring within the enforced area of this safety zone by any person or vessel is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.

This notice is issued under authority of 33 CFR 165.930 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register , the Captain of the Port, Sector Lake Michigan, will also provide notice through other means, which may include, but are not limited to, Broadcast Notice to Mariners, Local Notice to Mariners, local news media, distribution in leaflet form, and on-scene oral notice. Additionally, the Captain of the Port, Sector Lake Michigan, may notify representatives from the maritime industry through telephonic and email notifications.

On February 27, 2012, the Postal Service published with a request for comments a proposed revision of its regulations with regard to forfeiture authority and proceedings (77 FR 11437-52). As explained in that notice, the proposed revision was intended to implement specific requirements in compliance with the Civil Asset Forfeiture Reform Act (CAFRA) of 2000, consistent with the following goals:

(1) Consolidate the Postal Service's rules and regulations regarding the seizure and forfeiture of property from four sections into three, and include provisions governing remission or mitigation of administrative, civil, and criminal forfeitures.

(2) Identify the scope of authority available to the Postal Service to seize property for forfeiture, update definitions, and provide procedures governing practical issues regarding the seizure, custody, inventory, appraisal, settlement, and release of property subject to forfeiture.

(3) Conform the seizure and forfeiture regulations of the Postal Service to address procedural changes necessitated by CAFRA, and incorporate CAFRA's innocent owner defense into the remission regulations.

(4) Update the regulations to conform with other authorities and current forfeiture practice.

(5) Modify the procedures governing petitions for remission or mitigation of forfeiture, clarify the existing regulations pertaining to victims, and make remission available to third parties who reimburse victims under an indemnification agreement.

No comments were received in response to the publication of the proposed rule, and the Postal Service has accordingly determined to adopt the proposed revision to Part 233 without change.

Accordingly, for the reasons stated, the Postal Service amends 39 CFR Part 233 as follows:

This document announces that, on April 13, 2012, OMB approved, for a period of six months, the information collection requirements contained in the Commission's Order, FCC 12-11, published at 77 FR 12952, March 2, 2012. The OMB Control Number is 3060-0819. The Commission publishes this notice as an announcement of the effective date rules requiring OMB approval. The Commission updated its request to remove the temporary address confirmation and recertification requirements set forth in 47 CFR 54.410(g) and the portion of 47 CFR 54.405(e)(4) relating to temporary address de-enrollment; and the biennial audit requirements (47 CFR 54.420(a)). To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on April 13, 2012, for the information collection requirements contained in the Commission's rules at 47 CFR Sections 54.202(a), 54.401(d), 54.403, 54.404, 54.405(c) as it applies to the certification form, 54.405(e) except the portion of paragraph (4) relating to temporary address de-enrollment, 54.407, 54.410(a) through (f), 54.416, 54.417, 54.420(b), and 54.422.

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

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0819.

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

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0819.

OMB Approval Date: April 13, 2012.

OMB Expiration Date: October 31, 2012.

Title: Section 54.400 through 54.707 and Lifeline Assistance (Lifeline) Connection Assistance (Link-Up) Reporting Worksheet and Instructions.

Form Number: FCC Form 497.

Respondents: Individuals or households and businesses or other for-profit.

Number of Respondents and Responses: 13,500,940 respondents; 36,025,860 responses.

Estimated Time per Response: .25 hours to 50 hours.

Frequency of Response: On occasion, quarterly, biennially, monthly, 1-time, and annual reporting requirements, third party disclosure requirements and recordkeeping requirements.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 1, 4(i), 201-205, 214, 254, 403 of the Communications Act of 1934, as amended.

Total Annual Burden: 21,102,135 hours.

Total Annual Cost: N/A.

Nature and Extent of Confidentiality: The Commission is not requesting that respondents submit confidential information to the Commission. We note that the Universal Service Administrative Corporation must preserve the confidentiality of all data obtained from respondents and contributors to the universal service support program mechanism, must not use the data except for purposes of administering the universal service support program, and must not disclose data in company-specific form unless directed to do so by the Commission. Also, respondents may request materials or information submitted to the Commission be withheld from public inspection under 47 CFR 0.459 of the Commission's rules.

Needs and Uses: In the 2012 Lifeline Reform Order, 77 FR 12952, March 2, 2012, we take actions necessary to address waste in the Universal Service Fund. All the requirements contained herein are necessary to implement the congressional mandate for universal service. These reporting and recordkeeping requirements are necessary to ensure that only eligible subscribers receive support and that Eligible Telecommunications Carriers follow certain rules designed to protect low income consumers and the Universal Service Fund. The Lifeline Reform Order is another step in the Commission's ongoing efforts to overhaul all of USF programs. The Order acts to eliminate waste and inefficiency in the program and to increase accountability.

On February 29, 2012, FRA published its statement of agency policy and interpretation on the hours of service laws as amended (Final Interpretations), responding to public comments on FRA's earlier interim statement of policy, 74 FR 30665 (June 26, 2009), and clarifying additional questions concerning the hours of service laws. 77 FR 12408. In the Final Interpretations, FRA construed the word “day” for purposes of the statutory limitation on the number of consecutive days on which certain employees may initiate an on-duty period before being required to receive a certain rest period ( i.e., 49 U.S.C. 21103(a)(4) (sec. 21103(a)(4)). In the Final Interpretations, FRA interpreted the word “day” for purposes of sec. 21103(a)(4) to refer to the 24-hour period ending when an employee is finally released from duty, and any new initiation of an on-duty period at any point during the 24-hour period following the employee's prior final release will have been initiated on a day consecutive to the prior duty tour. This interpretation differed from the interpretation of what constitutes a “day” that was articulated in the interim statement of policy, which construed a “day” for the purposes of section 21103(a)(4) as a calendar day. FRA's interim interpretations went into effect on July 16, 2009, and they have remained in effect. The Final Interpretations are scheduled to go into effect on May 29, 2012.

In response to the Final Interpretations, the Association of American Railroads (AAR) requested a meeting with FRA. The meeting took place on April 4, 2012, and included the AAR as well as several railroads in teleconference. At the meeting, FRA requested that the AAR put its concerns in writing. FRA received a letter from the AAR, dated April 9, 2012, requesting that FRA delay the effective date of the interpretation relating to the meaning of “day” in section 21103(a)(4), section IV.B.1 of the Final Interpretations, until January 1, 2013, and raising other concerns. FRA has posted the letter to the docket, Docket No. FRA-2009-0057. The letter argues that it is infeasible for railroads to comply with the interpretation by May 29, 2012, for three reasons:

Recognizing that it may not be possible for some railroads to comply with the new interpretation by May 29, 2012, FRA is issuing this document, which delays the effective date of section IV.B.1, “What constitutes a `Day' for the purpose of sec. 21103(a)(4)?” until January 1, 2013. All other sections of the Final Interpretations remain effective on May 29, 2012.

In its April 9, 2012, letter, the AAR also requests a transition period from December 1, 2012 until the requested January 1, 2013, effective date in order to allow railroads to comply with the new interpretation of “day” for purposes of section 21103(a)(4) in advance of the effective date, rather than requiring compliance with the interim interpretation until the effective date of the new interpretation. To provide flexibility, rather than establish a static transition date, FRA will allow a railroad to choose to comply with the new interpretation on any date on or after May 29, 2012, and prior to January 1, 2013. FRA suggests that railroads choosing to transition to the new interpretation prior to January 1, 2013, inform the appropriate FRA regional offices, to reduce confusion and avoid redundant information requests from FRA inspectors.

Transition to the new interpretation must be by a railroad in its entirety, rather than on an employee-by-employee or subdivision-by-subdivision basis. Were a railroad to try to transition piecemeal, employees would likely be forced to move frequently between the interim interpretation and the new interpretation as they moved between subdivisions of the railroad. The AAR noted the complexity of moving employees from the interim interpretation to the new interpretation in the context of a single transition date; allowing multiple transition dates for a single railroad would exacerbate these concerns.

FRA requests that Class I railroads provide monthly status reports to Richard Connor, FRA Operating Practices Specialist, at Richard.Connor@dot.gov or at the street address listed above, starting July 1, 2012 and ending for each railroad after its transition to the new interpretation, to update FRA on the progress of each railroad toward resolving technological, training, and hiring issues, and any other issues that present an obstacle to compliance with the new interpretation. Such reports will allow FRA to ensure that railroads are working toward full compliance with the new interpretation no later than January 1, 2013. If FRA determines that railroads are not progressing toward implementation of the new interpretation, or if FRA is unable to gather the information necessary to make such a determination, FRA may publish an additional notice expediting the transition period.

Background

Before a plant or animal species can receive the protection provided by the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ) (Act), it must first be added to the Federal lists of threatened and endangered wildlife and plants. The List of Endangered and Threatened Wildlife (found in title 50 of the Code of Federal Regulations (CFR) in § 17.11) and the List of Endangered and Threatened Plants (found in 50 CFR 17.12) contain the names of all organisms that have been determined by the Services to qualify as “endangered species” or “threatened species.” After a species is listed as endangered or threatened under the Act, the Service that listed the species designates as “critical habitat,” to the maximum extent prudent and determinable, specific areas essential for the conservation of the species.

Under section 4(b)(5)(A) of the Act, the Services are required, when designating or revising critical habitat for species listed under the Act, to publish the complete text of the regulation in the Regulation Promulgation section of a rulemaking published in the Federal Register . The existing implementing regulations found in 50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a) have interpreted this requirement to comprise publication of both maps and textual descriptions of the boundaries of such habitat. We have found over time that textual descriptions of critical habitat boundaries are often difficult to interpret and understand, and do not provide clarity regarding the areas being designated. Publishing these textual descriptions is also inefficient and costly. Below we discuss our current requirements and their limitations, and the regulation changes we are promulgating to address these issues.

NMFS' current practice is to publish maps in the Federal Register along with a textual description of the boundaries of the areas being designated as critical habitat in both their proposed and final rules. FWS publishes only the maps in the proposed critical habitat rule and then publishes the maps along with a textual description of the boundaries in the final critical habitat rule. Historically we described the boundaries following a variety of methods, including Public Land Survey System designations (which specify township, range, and section; sometimes referred to as the “rectangular survey system”) and metes-and-bounds (a system of describing a parcel of land using the physical features of local geography, along with directions and distances, to define the boundaries). However, as GIS and specific geographic-based data have become more available, we have been using predominantly the Universal Transverse Mercator (UTM) coordinate system (a grid-based system employing a series of 60 zones to specify locations on the surface of the Earth) and latitude-longitude. We adopted these practices because our current regulations at 50 CFR 424.12(c) state, “Each critical habitat will be defined by specific limits using reference points and lines as found on standard topographic maps of the area.” Unfortunately, these descriptions are often difficult to interpret and understand, and do not provide clarity regarding which areas are being designated as critical habitat. Therefore, in addition to the maps and textual descriptions published in the Federal Register , over the last several years we have provided the public with interactive maps and additional descriptions, on the Services' Internet sites and at the lead field office responsible for the designation. References to these Internet sites are cited throughout the proposed (NMFS only) and final (NMFS and FWS) rules and in our outreach materials for the specific action. In addition, we have provided maps and GIS coverages (data layers) to affected Federal agencies, states, counties, jurisdictions, and interested parties for use in their computer databases and to make available to their constituencies. Our understanding that the public has referred to these latter materials in lieu of the detailed coordinates and other similar textual descriptions published in the Federal Register and codified in the Code of Federal Regulations reinforces our view that these textual descriptions are of limited utility in informing the public as to which areas are designated as critical habitat.

Given that the textual descriptions are of limited utility, we are revising the implementing regulations contained within 50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a), to eliminate the requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and FWS) critical habitat boundaries in the Federal Register and reprinting in the CFR, and instead provide that the map(s), as clarified or refined by any textual language within the rule, constitutes the definition of the boundaries of a critical habitat. Each critical habitat area will be shown on a map, with more-detailed information discussed in the preamble of the rulemaking documents published in the Federal Register . The map published in the CFR will be generated from the coordinates and/or plot points corresponding to the location of the boundaries. These coordinates and/or plot points will be included in the administrative record for the designation, and will be available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will make the additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov ). The maps and brief textual descriptions that we plan to publish in the Federal Register after we finalize this rule will be sufficient to inform the public of the boundaries of a particular critical habitat designation, and thus constitutes sufficient notice to the public. It is not necessary—or generally even helpful—for the public to have UTM or latitude-longitude coordinates in order to know where critical habitat is located. We believe these changes will be for the public good and make the process more user-friendly, without compromising the public's understanding of the overall process.

In addition to making the process more accessible to the public, eliminating the need to publish detailed textual descriptions in the Federal Register and annually in the CFR will also result in significant financial savings, thereby saving Federal resources. In FWS's final designations, UTM coordinate pairs or other textual descriptions of the boundaries of areas often account for more than half of the rulemaking document; therefore, eliminating the requirement to publish those textual descriptions will result in significant savings of Federal Register publication costs. For example, FWS spent $764,523 in fiscal year 2008, $539,639 in fiscal year 2009, and $662,952 in fiscal year 2010 to publish critical habitat designations in the Federal Register , for a total of $1,967,114 for the three fiscal years combined. If, based on the percentage of critical habitat Federal Register pages that were devoted in 2010 to textual descriptions, we estimate that 50 percent of those total costs were spent on the publication of the textual descriptions of the boundaries, then publishing those descriptions cost the Service $983,557 for the three fiscal years, or $327,852 per fiscal year.

In addition, the regulation portion of the rule, including the maps and textual descriptions of the boundaries, is reprinted annually in the CFR, resulting in a further expenditure of taxpayer resources. FWS spent $80,000 in fiscal year 2008, $92,400 in fiscal year 2009, and $83,160 in fiscal year 2010 to reprint critical habitat designations in the CFR. Based on a review of the current volume (i.e., number of pages) of critical habitat designations represented in the CFR, we estimate that the textual descriptions account for approximately 75 percent of the volume and therefore 75 percent of the printing costs. Using the estimated 75 percent as the cost of reprinting the textual descriptions of the boundaries, publishing those descriptions cost FWS $191,670 for the three fiscal years. Adding this to the Federal Register costs discussed above, we estimate that the annual cost for publishing textual descriptions of boundaries in the Federal Register and then reprinting them in the CFR is nearly $391,742 for FWS alone. Thus, eliminating the need to publish latitude-longitude coordinates, UTM coordinate pairs, or other detailed textual descriptions in the Federal Register and CFR would result in a significant cost savings to the Services and the public as a whole.

Finally, relying on maps and brief textual descriptions to identify areas designated as critical habitat is consistent with the Act. Section 4(a)(3)(A) of the Act only requires that critical habitat be designated “by regulation.” Moreover, section 4(b)(5)(A) of the Act indicates that the Secretary shall “not less than 90 days before the effective date of the regulation—(i) publish a general notice and the complete text of the proposed regulation in the Federal Register , and (ii) give actual notice of the proposed regulation (including the complete text of the regulation).” We interpret the mandate to publish the “complete text” of the proposed regulation as requiring that the regulation provide a sufficiently detailed description of the area included within the proposed designation, in the form of maps and any accompanying text, so as to provide all interested persons with an understanding of, and a meaningful opportunity to comment on, the critical habitat boundaries. As is already the current practice with critical habitat designations containing detailed UTM coordinates as required by the existing regulations, the public will be able to refer to any additional supporting information we make available through our outreach efforts, Internet sites, and at the lead field office responsible for the designation to assist the public in understanding the official boundary.

We note that the Services never maintained that requiring detailed textual descriptions was legally necessary. Instead, the first critical habitat regulations required only that critical habitat designations be “accompanied by maps and/or geographical descriptions.” 43 FR 870, 876 (Jan. 4, 1978). Although the Services subsequently added the requirement that critical habitat designations include textual descriptions describing the specific boundary limits of the critical habitat, there is nothing in the preamble to that rule indicating that the Services did so because the Act required it. Rather, it was in response to several commenters, who had opined that the proposed rule was not sufficiently clear in setting out the method by which critical habitat boundaries would be described. 45 FR 13009, 13015 (Feb. 27, 1980). With this change, the regulations would continue to be explicit as to the method by which critical habitat boundaries would be described; it would just do so by means that do not require detailed textual descriptions.

In the proposed rule published on May 17, 2011 (76 FR 28405), we requested that all interested parties submit written comments on the proposal by July 18, 2011. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties, and invited them to comment on the proposal. We did not receive any requests for a public hearing.

During the comment period for the proposed rule, we received 14 comment letters directly addressing the proposed regulations for requirements to publish textual descriptions of boundaries of critical habitat. Five commenters supported the proposal, 8 commenters opposed it, and one commenter was neutral. All substantive information provided during comment periods has either been incorporated directly into this final determination or addressed below.

(1) Comment: Two Federal agencies suggested that we provide a link and a point of contact within the Federal Register publication to the internet sites maintained by both Services.

Our Response: We will provide a link and a point of contact within the Federal Register publication to the Internet sites that will house the GIS information regarding the location of critical habitat.

(2) Comment: Two Federal agencies suggested we provide more information on our GIS maps, such as detailed scale, legend, scale bar, north arrow, title, source, the date critical habitat was finalized, and Federal Register citation.

Our Response: We will provide as much information as possible on the GIS maps to improve their usefulness.

Section 4(i) of the Act states, “[T]he Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” Comments received from State agencies regarding the proposal to revise the implementing regulations requiring textual descriptions of critical habitat boundaries are addressed below.

(3) Comment: Technical publishing limitations can create a barrier to utilizing the best scientific data available in the pictorial maps published in the Federal Register .

Our Response: Although it is true there are technical publishing limitations imposed by the Federal Register regarding map size and detail, these limitations will not affect our mandated practice of using the best available science. In addition, if there are limitations imposed due to map size such that additional rule text would be necessary to ensure that interested persons have adequate notice to afford them a meaningful opportunity to comment on the critical habitat boundary, we will provide language in the rule text to clarify the map. Plus, the coordinates and/or plot points from which the maps are generated will be included in the administrative record for the designation, and will be available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. For the convenience of the public, we will continue to provide additional tools and supporting information on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and some of this information may also be included in the preamble and/or at www.regulations.gov ).

(4) Comment: Pictorial maps cannot always provide the same level of detail that a textual description can provide.

Our Response: Although maps may not be as detailed as UTM and latitude-longitude coordinates, the maps and any accompanying textual description published in the Federal Register will provide sufficient notice to the public of the designation. We are not prohibiting textual descriptions. We always have the option to include them, and if we determine they are needed to ensure the public has adequate notice, we will include them in the rule text. We will also include in the administrative record for the designation the coordinates and/or plot points on which the maps are based, and will make them available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. In addition, as is the current practice, if we determine that any other supporting information or additional tools would help the public understand the official boundary map, we will make them available on our Internet sites and at the lead field office responsible for the designation (and we may also include such information in the preamble and/or at www.regulations.gov ).

(5) Comment: Under the proposed change, access to the GIS data underlying the maps would be restricted.

Our Response: Access to the GIS data underlying the maps would continue to be available on our Internet sites and from the lead field office of the Service responsible for the critical habitat designation. We will also make hard copies available for individuals who do not have access to the internet upon request at our field offices. Our statement that “we do not think it is necessary for the public to have UTM or latitude-longitude coordinates in order to know where critical habitat is located,” is based on our understanding that for the last few years the public has not used the UTM or latitude-longitude coordinates to determine if their property is located in critical habitat areas, and that the UTM and latitude-longitude coordinates published in the Federal Register have not helped most individuals determine if their property is in or out of critical habitat designations, because they would need to have access to USGS quadrangle maps in order to plot the coordinates to determine the boundaries of critical habitat. We will continue to include in the administrative record the coordinates and/or plot points on which the maps are based, and we will make those coordinates and/or plot points available to the public on our Internet sites and at the lead field office of the Service responsible for the critical habitat designation, and at www.regulations.gov, but will not publish these data in the Federal Register .

(6) Comment: The Service's intention to address the technical publishing limitations by directing the public to their Internet sites and local offices for more information is inadequate.

Our Response: As discussed in our response to comment 4, we will address the technical publishing limitations by including whatever explanatory text the Service responsible for the designation determines is necessary to ensure the public has adequate notice of the designation. In addition, the coordinates and/or plot points from which the maps are generated will be included in the administrative record for the designation, and will be available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. For the convenience of the public, we will continue the current practice of making available on the Internet site and at the local field office of the designating Service any supporting information or additional tools that it determines would help the public understand the official boundary map.

(7) Comment: The reliance on pictorial maps would affect the Services' ability to analyze the primary constituent elements (PCE), economic, national security, or other relevant impacts and the ability of the States and the public to consider and comment on these issues.

Our Response: The Services are not changing the way we analyze the physical and biological features essential to the conservation of the species, including the primary constituent elements, economic, national security, or other relevant impacts. We will continue to define the critical habitat areas with coordinate data and use that data to generate the critical habitat map contained in the rule. The only difference from the way we presently are operating is that we would no longer publish the coordinate data in the Federal Register . The States and the public would still have that information in the supporting administrative record, and would be able to obtain it on our Internet sites, at www.regulations.gov, and at the lead field office of the Service responsible for the critical habitat designation.

(8) Comment: Internet site addresses that contain the critical habitat boundaries should be provided in easily accessible locations for both the proposed and final rules.

Our Response: We will continue to provide the critical habitat boundary information on our Internet sites and at the lead field office of the Service responsible for the critical habitat designation and will make it available at www.regulations.gov for easy access. We will also continue to publish the Internet sites and local office addresses in the Federal Register for both the proposed and final critical habitat rules.

(9) Comment: Complete metadata related to critical habitat maps, as well as a complete legal description of the boundary, should be available on the Services' Internet sites and at all local field offices within the region of the designation.

Our Response: We will provide this information on our Internet sites and at the lead field office of the Service responsible for the critical habitat designation (and we may also make it available at www.regulations.gov ).

(10) Comment: In describing the proposed and final critical habitat boundary designation, the maps and data used in the Federal Register and other information vehicles should include references to how accurate the underlying data are and what at least the essential elements of the metadata are.

Our Response: Information about the metadata and the accuracy of the data will be provided in the supporting rulemaking files for the proposed and final critical habitat boundaries. We will not publish this information in the Federal Register .

(11) Comment: Critical habitat boundaries should be available in a geographic information system (GIS) compatible format for downloading.

Our Response: We concur, and we will provide GIS maps on our Internet sites and at the lead field office of the Service responsible for the critical habitat designation (and we may also make it available at www.regulations.gov ).

(12) Comment: Three commenters fully support the proposal, because it would significantly streamline the process of designating critical habitat, would not weaken the effectiveness of the Act for wildlife, and would not undermine the public's ability to identify the boundaries of proposed and final critical habitat designations.

Our Response: We appreciate the comments, and agree.

(13) Comment: One commenter stated that there was inconsistent language in the proposed rule that should be clarified and corrected. In 50 CFR 424.12(c) we use an “and” between the clauses and in 50 CFR 424.18(a) we use an “or” between the clauses.

Our Response: We do not believe that the language is inconsistent as proposed. The “and” between the phrases in 50 CFR 424.12(c) is referring to the detailed information that will be provided in the preamble for each critical habitat designation. This information will also be on our Internet sites and at the lead field office of the Service responsible for the critical habitat designation. The “or” between the clauses in 50 CFR 424.18(a) is referring to the additional tools and supporting information that we will make available if we determine it would help the public understand the official boundary map. Such additional tools or supporting information may be published in the preamble of the rulemaking document or at www.regulations.gov, or—depending on the size, detail, etc.—may only be made available from our Internet sites and the lead office of the Service responsible for the designation.

(14) Comment: Two commenters stated the definitive regulatory text is necessary to set forth the extent of critical habitat, its intended function and purpose, its regulatory basis, and any related interpretations.

Our Response: We will continue to provide textual descriptions as necessary for purposes of clarifying or refining the location and boundaries of each area or to explain the exclusion of sites (e.g., paved roads, buildings) within the mapped area. The major change from the way we are currently doing business is that we would not publish the coordinates of the critical habitat boundaries in the Federal Register . This information would still be part of the administrative record underlying the designation, and will be available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation.

(15) Comment: The proposed rule raises the possibility of overbroad designations of critical habitat made without careful prior analysis of the primary constituent elements, areas of exclusion for existing facilities, and delineation of the critical habitat boundaries.

Our Response: We are not changing the way we analyze physical and biological features essential to the conservation of the species, including the primary constituent elements, areas of exclusion for existing facilities or delineation of the critical habitat boundaries. We will continue to generate the coordinates of the boundaries of the critical habitat, which will in turn provide the basis for the maps and any necessary textual descriptions published in the Federal Register . Therefore, the coordinate information will be part of the rulemaking files and will be available to the public. This will save the Federal government money, and provide better and easier public access to the data.

(16) Comment: One commenter asked why the public was left out of the 50 CFR 424.16(ii) language.

Our Response: This section only applies to State and local governments. The public is always invited to comment, and this in no way prevents that from occurring.

(17) Comment: One commenter wanted to know at whose discretion is the optional additional textual data provided, and what criteria go into that decision.

Our Response: The discretion would fall to the Secretary of the Interior for critical habitat being designated by the Fish and Wildlife Service and to the Secretary of Commerce for critical habitat being designated by the National Marine Fisheries Service. The conditions that would lead the designating Secretary to make the decision to publish rule text in addition to the maps would include instances in which the rule text is necessary to ensure that the public has adequate notice of the location and boundaries of the designation or to explain the exclusion of sites (e.g., paved roads, buildings) within the mapped area.

(18) Comment: One commenter stated that this proposal makes an already inadequate and unlawful notification system even worse by removing all meaningful constraints and requirements on how the Services designate critical habitat.

Our Response: This regulation change does not alter how the Services designate critical habitat. Under the Administrative Procedure Act, the designating Service must ensure that the public has adequate notice to provide meaningful comment on the proposed designation. To do this, the notice of proposed rulemaking must fairly apprise interested persons of the issues in the rulemaking, and the agency must make available the data on which the rule is based. In the context of designation of critical habitat, this means, among other things, that the notice must fairly apprise interested persons as to what areas may be included in the final designation, and the designating Service must make available the coordinate information and/or plot points on which the maps published in the Federal Register are based. It is our intent that every designation issued pursuant to these revised regulations meet this standard. This rule would simply allow us to eliminate publishing the rarely-used coordinate data in the Federal Register , while still providing the public with adequate notification.

(19) Comment: The Services are violating the Act by unlawfully shifting the burden of demonstrating what is or is not critical habitat to the landowner by this proposed rule change.

Our Response: This rule change would not shift the responsibility of determining which specific areas are critical habitat to the landowner; this would still be the responsibility of the Services. The map combined with any additional rule text should provide adequate notice to the public regarding the critical habitat boundaries. Landowners would have no added burden of demonstrating what is or is not critical habitat, and as with critical habitat designations under the existing regulations, will continue to have access to the coordinates and/or plot points underlying the maps, as well as all of the additional tools and supporting information the Service responsible for the designation routinely makes available to help the public understand the official boundary.

(20) Comment: The Services' proposal violates the Act's mandate that the agencies designate specific, not general, areas.

Our Response: The Services would continue to be responsible for identifying specific areas, to the maximum extent prudent and determinable, that meet the definition of critical habitat in the Act. The changes to the regulations discussed herein will not have any effect or bearing on that statutory requirement. We have determined, however, that the manner in which we have been describing the boundaries of the specific areas in our Federal Register document is not the most helpful or useful to the public.

(21) Comment: One commenter stated that removal of the textual descriptions of critical habitat would violate the Act.

Our Response: Relying on maps and brief textual descriptions to identify areas designated as critical habitat is consistent with the Act, as explained above. In fact, the current requirement to publish the textual descriptions is not found in the Act itself, but in our implementing regulations. With this change, the implementing regulations would continue to prescribe the manner in which the Secretaries will delineate critical habitat boundaries; the manner those regulations prescribe for delineating critical habitat boundaries would leave to the discretion of the agencies whether it was necessary to include the publication of textual descriptions in the Federal Register in a particular designation.

(22) Comment: The Services' assertion that even more limited descriptions of critical habitat will be sufficient to inform the public is unsupported and wrong, because map scales are too general to be of much use to individual landowners.

Our Response: It is true that due to technical publishing limitations, the scale of some maps that will be published in the Federal Register may necessitate that we provide explanatory text for clarification. If the maps are ambiguous such that rule text would be needed to ensure the public has adequate notice of the designation, we will include accompanying text in the rule. Moreover, as with critical habitat designations under the existing regulations, the public will continue to have access to the coordinates and/or plot points underlying the maps, as well as all of the additional tools and supporting information the Service responsible for the designation routinely makes available to help the public understand the official boundary.

(23) Comment: The Services' proposal supplants established surveying techniques with unspecified general descriptions to the detriment of private landowners.

Our Response: We would continue to use established surveying techniques for defining the boundaries of critical habitat, which would then be represented in the maps and any accompanying textual descriptions in the Federal Register .

(24) Comment: One commenter stated that publishing only a detailed description of the critical habitat violates the Act, which requires publication of the complete text of the critical habitat.

Our Response: We interpret the mandate to publish the “complete text” of the proposed regulation as requiring that the regulation provide a sufficiently detailed description of the area included within the proposed designation so as to provide all interested persons with an understanding of the critical habitat boundaries and a meaningful opportunity to comment on those boundaries. The regulation changes will allow us to continue to meet that mandate by publishing maps of the critical habitat boundaries.

(25) Comment: The Services' proposed changes would deny landowners due process.

Our Response: We will continue to provide a sufficiently detailed description in the Federal Register of the critical habitat area in the form of maps and any accompanying rule text that is needed to provide landowners with a meaningful opportunity to comment. We will also continue to include within the administrative record for the designation the coordinates and/or plot points that were used to generate the maps and will make this data available on the Services' Internet sites, www.regulations.gov, and at the lead field office of the Service responsible for the designation. In addition, as we already do under the existing regulations, whenever we conclude that additional tools or supporting information would help the public understand the official boundary, we will make those materials available on our Internet sites and at the lead field office of the Service responsible for the critical habitat designation (and we may also provide them at www.regulations.gov ). These changes will continue to provide landowners due process, as they will not alter the nature of the information the public currently uses to identify critical habitat boundaries.

(26) Comment: The projected cost savings is minuscule compared to the increased cost burdens that will be imposed on individual property owners.

Our Response: We do not anticipate that this change would impose increased cost burdens on individual property owners. The critical habitat boundaries will be reflected in maps and any accompanying text published in the Federal Register . In addition, individual property owners will be able to easily access additional information regarding the critical habitat designation on our Internet sites, at www.regulations.gov, and at the lead field office of the Service responsible for the critical habitat designation. We will not only save Federal monies, but also reduce the cost burden on individual property owners by making critical habitat information easier to obtain.

(27) Comment: The Services should provide written notice directly to the owners of land by mail whenever they propose to include land in a critical habitat designation.

Our Response: In addition to the Federal Register notices, the Services provide notification through outreach materials including press releases and legal notices in newspapers of the affected areas. We believe these outreach efforts are sufficient to inform the public about proposed critical habitat designations. Notifying property owners by mail would be costly, time consuming, and largely duplicative of our current outreach efforts.

(28) Comment: The Services should publish maps in the Federal Register of a sufficient scale and with sufficient detail to allow a landowner to determine whether their property falls within a proposed critical habitat designation.

Our Response: The Federal Register limitations on map size and detail prevent the Services from being able to improve upon the present maps being published in the Federal Register . We will publish maps in the Federal Register in as detailed a manner as possible, given the technical limitations. For designations with large-scale maps, the map itself may leave ambiguity as to whether a particular property is within the mapped boundaries (and therefore covered by the critical habitat designation). When the designating Service determines that additional regulatory text clarifying ambiguities in the map is needed to ensure that the public would have adequate notice of the critical habitat boundaries, the designating Service will provide additional regulation text. The designating Service will ensure that the notice of proposed rulemaking provides sufficient notice of the boundary of the proposed designation to afford the public a meaningful opportunity to comment on it. Moreover, the Services will make available the underlying rulemaking files for the proposed and final rule (including the coordinate information and/or plot points on which the maps published in the Federal Register are based).

(29) Comment: One commenter was concerned that if the proposed rule is adopted, it will reduce information that must be published in the Federal Register when designating critical habitat, and would potentially provide the opportunity to change the information available at agencies without going through rulemaking.

Our Response: We would not be able to change the critical habitat designation without going through the rulemaking process. We have acknowledged that what is printed in the Federal Register and subsequently in the CFR will be the legally binding delineation of critical habitat. Should there be ambiguity due to the scale of the map such that additional regulatory text clarifying ambiguities in the map is needed to ensure that the public would have adequate notice of the boundaries, we will provide additional regulation text. The only change in the Federal Register would be the lack of the detailed coordinate data of the boundaries of the specific areas being designated as critical habitat (i.e., latitude-longitude and UTM coordinates). We would still generate that data, and would make it available on our Internet sites, at www.regulations.gov, and at the lead field office of the Service responsible for the critical habitat designation. Neither the critical habitat designation published in the Federal Register , nor the underlying data on which it is based, could be changed without undergoing a further rulemaking.

(30) Comment: One commenter stated that the proposed approach could create significant concerns if implemented in a manner that designates wide swaths of lands on a map, only certain areas of which contain the physical and biological features necessary for conservation of the species.

Our Response: The way we designate critical habitat would not change. This rule change would simply remove the requirement that we publish the reference points (i.e., textual descriptions) in the Federal Register and reprint them annually in the CFR. In addition, in instances where there are areas within a bigger area that do not contain the physical and biological features necessary for the conservation of the species, the Services would have the option of drawing the map to reflect only those parts of the area that do contain those features, or including a textual description that excludes from the designation specific areas that do not contain those features.

(31) Comment: One commenter proposes that we add the following sentence to 50 CFR 424.18(a): “General descriptions of the location and boundaries of each area may be provided for clarification purposes or to explain the exclusion of sites (e.g., paved roads, buildings, etc.) within the mapped area.”

Our Response: We have inserted that language in 50 CFR 424.12(c). We do not believe it is necessary to repeat this in 50 CFR 424.18(a).

(32) Comment: One commenter was concerned about the removal of the textual descriptions of existing final critical habitat boundaries set forth in the CFR and whether the broad scale maps would increase critical habitat.

Our Response: Removing the coordinate data from the Federal Register and CFR will not increase or otherwise change the critical habitat boundaries or areas. We are merely planning to remove the reference points (i.e., UTM or latitude-longitude coordinates) of the textual descriptions from existing final critical habitat designations in the Federal Register and CFR in future rule making. We will, however, continue to provide this information on our Internet sites, at www.regulations.gov, and at the lead field office of the Service responsible for the critical habitat designation.

(33) Comment: One commenter stated that, without the requirement of a written description, there is no assurance that the maps will or will not indicate the boundary of the critical habitat.

Our Response: We are making the textual descriptions optional. This means we will not, in most cases, publish the reference points (i.e., UTM or latitude-longitude coordinates) in the Federal Register . However, every critical habitat designation must include a map delineating the critical habitat boundary, and may also include general textual descriptions for clarification purposes or to explain the exclusion of sites (e.g., paved roads, buildings, etc.) within the mapped area. The critical habitat map, combined with any general textual descriptions included in the rule text, will provide the public with adequate notice of where the boundary of the critical habitat designation is located. As we have acknowledged, therefore, the final rule published in the Federal Register and subsequently in the CFR will continue to contain the legally binding delineation of critical habitat. However, if for some reason a member of the public is uncertain about the boundaries of a particular critical habitat designation even after reading the map and any regulatory text, they will continue to have access to the coordinates and/or plot points underlying the maps, as well as all of the additional tools and supporting information the Service responsible for the designation already routinely makes available to assist the public in understanding the official boundary.

(34) Comment: One commenter stated that our proposed changes to 50 CFR 17.94(b) (Each Critical Habitat area will be shown on a map, with more-detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead field office of the Service responsible for such designation) was in conflict with our proposed changes to 50 CFR 424.18(a) (The Service may also create additional explanatory text, information, or maps and include them in the preamble of the rulemaking document or make them available from the lead office responsible for the designation).

Our Response: The two provisions referenced by the commenter are consistent. Both provisions have two components. The first component requires that the detailed description of the action contained in the Federal Register rule and then in the CFR will include a map delineating the boundary of the designation. This can be found at 50 CFR 424.18(a) (“For a rule designating or revising critical habitat, the detailed description of the action will include a map that delineates the official boundary of the designation.”) and at 50 CFR 17.94(b) (“Each Critical Habitat area will be shown on a map * * *”). The requirement to include a map in the detailed description of the action does not eliminate the option of also including additional clarifying rule text within that detailed description. The second component of the two provisions outlines ways to provide more information that we believe would be helpful to inform the public on the location of critical habitat above and beyond the detailed description of the action. This can be found at 50 CFR 17.94(b) (“with more-detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead field office of the Service responsible for such designation.”) and at 50 CFR 424.18(a) (“The Service responsible for the designation will include more-detailed information in the preamble of the rulemaking document and will make the coordinates and/or plot points on which the map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov )”). Therefore, in accordance with 50 CFR 17.94(b), the more-detailed information we provide in the preamble of the rulemaking document will also be available from the lead Service office responsible for the designation. Any additional tools or supporting information--explanatory text, information, or maps--that we may provide would, in accordance with 50 CFR 424.18(a), be available through our Internet sites and at the lead field office responsible for the designation, and depending on the size and format of that supporting information, it may also be included in the preamble to the rulemaking document and/or at www.regulations.gov . Also under 50 CFR 424.18(a), the coordinates and/or plot points on which the map is based would be available at the Internet site and lead field office of the Service promulgating the designation and at www.regulations.gov .

The existing regulation states that the map provided by the Director does not, unless otherwise indicated, constitute the definition of the boundaries of a critical habitat. In order to provide more clarity regarding the areas being designated, as well as be more efficient and cost-effective, we are changing the wording of the first sentence to state, “For the critical habitat designations published and effective after May 31, 2012, the map provided by the Secretary of the Interior, as clarified or refined by any textual language within the rule, constitutes the definition of the boundaries of a critical habitat.” We are replacing “the Director” with “the Secretary of the Interior” since the authority to designate critical habitat under the Act lies with the Secretary due to the Secretarial discretion under section 4(b)(2) of the Act to exclude specific areas from final critical habitat. We are limiting application of the new language to critical habitat designations published after the effective date of the final rule. For existing critical habitat designations, we also intend to remove the textual descriptions of final critical habitat boundaries set forth in the CFR in order to save the annual reprinting cost, but we must do so in separate rulemakings to ensure that removing the textual descriptions does not change the existing boundaries of those designations.

The second sentence of the existing regulation states, “Such maps are provided for reference purposes to guide Federal agencies and other interested parties in locating the general boundaries of the Critical Habitat.” We are revising this sentence to read “Each Critical Habitat area will be shown on a map, with more-detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead field office of the Service responsible for such designation.” We believe this will provide greater clarity regarding the areas being designated, as well as be a more efficient and cost-effective way to provide information to the public concerning areas designated as critical habitat. We acknowledge that what is printed in the Federal Register and subsequently in the CFR will be the legally binding delineation of critical habitat. In addition, the Services will include more-detailed information in the preamble of the rulemaking document and will make the coordinates and/or plot points on which the official map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. Furthermore, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov ).

We are replacing the third existing sentence, which currently reads, “Critical habitats are described by reference to surveyable landmarks found on standard topographic maps of the area and to the States and county(ies) within which all or part of the Critical Habitat is located.” The new wording will be “Each area will be referenced to the State(s), county(ies), or other local government units within which all or part of the Critical Habitat is located. General descriptions of the location and boundaries of each area may be provided to clarify or refine what is included within the boundaries depicted on the map, or to explain the exclusion of sites (e.g., paved roads, buildings) within the mapped area.” This change will relieve us of the regulatory and financial burden of publishing the textual descriptions of the boundaries of critical habitat in the regulations, which have shown to be of limited use to the general public.

This section addresses critical habitat designations made by the Secretary of Commerce. We are replacing the “Maps and charts identifying designated critical habitat * * *” phrase in the beginning of the last sentence with “Additional information regarding designated critical habitat * * *.” This new language will provide the flexibility needed to provide any kind of useful information to the public concerning areas designated as critical habitat, and not just maps and charts.

We are removing the references to defining critical habitat by specific limits using reference points and lines as found on standard topographic maps of the area. The revision will read, “Each Critical Habitat area will be shown on a map, with more-detailed information discussed in the preamble of the rulemaking documents published in the Federal Register and made available from the lead field office of the Service responsible for such designation.” This revision will provide more clarity regarding the areas being designated, as well as relieve the regulatory and financial burden of both Services being required to print these reference points in the Federal Register and reprint them annually in the CFR. We acknowledge that what is printed in the Federal Register and subsequently in the CFR will be the legally binding delineation of critical habitat. However, should there be ambiguity due to the scale of the map such that regulatory text clarifying the ambiguity is needed to ensure that the public would have adequate notice of the designation, the Services will include clarifying rule text. The designating Service will make the coordinates and/or plot points on which the map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov ). In the future, we intend to remove the textual descriptions of final critical habitat boundaries set forth in the CFR for existing critical habitat designations in separate rulemakings in order to save the annual reprinting cost, without changing those boundaries.

We are adding the following sentence to this regulation: “Textual information may be included for purposes of clarifying or refining the location and boundaries of each area or to explain the exclusion of sites (e.g., paved roads, buildings) within the mapped area.”

The change to this section is in the first sentence where it currently states, “A notice of a proposed rule to carry out one of the actions described in § 424.10 shall contain the complete text of the proposed rule.” We are changing the wording “shall contain the complete text of the proposed rule” to “will contain a detailed description of the proposed action.” Although we will in fact publish the complete proposed critical habitat designation, it could be confusing to require that the notice of a proposed critical habitat designation contain “the complete text” of the proposed regulation,” since as a result of the other changes in this notice, the boundaries of a critical habitat designation may be identified using only a map. Because the regulation will consist of the legally binding detailed description of the designation, which will include the map, we included the language “will contain a detailed description of the proposed action” to clarify that the proposed rule must include the maps, and may include any accompanying text, that establish the legal boundary of the designation. We also added that the proposed rule “may also include rule text that clarifies or modifies the map” to make clear that the designating Service has the option of including textual descriptions that clarify or modify the map.

The change to this section is that we have removed the parenthetical phrase “(including the complete text of the regulation).” As stated above, although we would still give notice of the complete proposed critical habitat designation, it could be confusing to require that the notice include the “complete text” of the designation, since as a result of the other changes in this notice, we are interpreting the “complete text” of the designation to be the map, along with any optional rule text that may clarify the map. As discussed above, the Services will include more-detailed information in the preamble of the rulemaking document and will make the coordinates and/or plot points on which the map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov , and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov ).

This section addresses the final rule requirements. In the second sentence of the existing regulation, we are replacing “the complete text of the rule” with “a detailed description of the action being finalized.” As with the sections above that deal with the requirements for a proposed rule, changing the wording here, along with the other changes proposed in this notice, will clarify that the final rule must contain the detailed description of the designation as reflected in the map and any optional additional rule text that clarifies or refines the map. As discussed above, the Services will include more-detailed information in the preamble of the rulemaking document and will make the coordinates and/or plot points on which the map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov , and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov ). Because the regulation will consist of the legally binding detailed description of the designation, which will include the map, we included the language “will contain a detailed description of the proposed action” to clarify that the final rule must include the maps, and may include any accompanying text, that establish the legal boundary of the designation.

In the fourth sentence of the existing regulation, we are removing the references to the final rule containing a description of the boundaries of the critical habitat being designated. We are modifying this section and expanding the discussion on the requirement for a map. The new section will read, “For a rule designating or revising critical habitat, the detailed description of the action will include a map of the critical habitat area, and may also include rule text that clarifies or modifies the map. The map itself, as modified by any rule text, constitutes the official boundary of the designation. The Service responsible for the designation will include more-detailed information in the preamble of the rulemaking document and will make the coordinates and/or plot points on which the map is based available to the public on the Internet site of the Service promulgating the designation, at www.regulations.gov , and at the lead field office of the Service responsible for the designation. In addition, if the Service responsible for the designation concludes that additional tools or supporting information would be appropriate and would help the public understand the official boundary map, it will, for the convenience of the public, make those additional tools and supporting information available on our Internet sites and at the lead field office of the Service that is responsible for the critical habitat designation (and may also include it in the preamble and/or at www.regulations.gov ).” This change will provide more clarity regarding the areas being designated, and will assist the public in evaluating the coverage of the critical habitat designation, as well as allow us to reduce our printing costs in both the Federal Register and for the annual reproductions of the CFR.

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

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

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

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

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

Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., whenever an 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 effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted, would not have a significant economic effect on a substantial number of small entities as defined under the RFA. This certification is available upon request (see ADDRESSES section above).

This rule will revise the implementing regulations contained within 50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a), to eliminate the requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and FWS) critical habitat boundaries in the Federal Register and reprinting in the CFR, and instead provide that the map(s), as clarified or refined by any textual language within the rule, constitutes the definition of the boundaries of a Critical Habitat. A full description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this rule. The rule does not duplicate, overlap, or conflict with other Federal rules.

This rulemaking amends the procedural requirements for NMFS and FWS when designating critical habitat. NMFS and FWS are the only entities that are directly affected by this rule, and they are not considered to be small entities under SBA's size standards. Therefore, no small entities are directly affected by this rule.

The revisions to the implementing regulations herein are not expected to impose any direct costs on regulated entities. Although the Services will make additional information available to assist small entities in evaluating the coverage of the critical habitat delineated by the published maps, the Services already make such information available, and our understanding is that small entities and the public already routinely make use of such information. Therefore, eliminating the requirement to publish textual descriptions and instead publishing the maps in the Federal Register and making additional information available on the Internet site of the Service promulgating the designation, at www.regulations.gov, and at local field offices would not impose any additional burden on small entities. The elimination of the procedural requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and FWS) critical habitat boundaries in the Federal Register and reprinting in the CFR is an administrative action, and it is intended to facilitate public understanding of the critical habitat designation process and make it easier for the public to determine if specific areas are within the critical habitat designation. In fact, this regulation would make the process more cost-effective for the agencies and the public as a whole, and would potentially save the FWS alone an estimated $391,742 annually. Therefore, for the reasons above, this rule will not have a significant economic impact on a substantial number of small entities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), the Services make the following findings:

a. This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)—(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

b. This rule will not significantly or uniquely affect small governments, because the revisions to the implementing regulations herein will facilitate public understanding of the critical habitat designation process, and the areas included within the critical habitat, and make the process more cost-effective for the agencies and the public as a whole by potentially saving the FWS alone an estimated $391,742 annually. As such, we do not believe that a Small Government Agency Plan is required.

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have evaluated the revised implementing regulations for designating critical habitat, and have determined that this rule does not pose significant takings implications. The revisions to the implementing regulations are intended to facilitate the public understanding of the rulemaking process for critical habitat. It does not involve individual property rights.

In accordance with Executive Order 13132 (Federalism), the rule does not have significant Federalism effects. A Federalism assessment is not required. The revisions to the regulations addressed in this rule are intended to facilitate the public understanding of the rulemaking process for critical habitat, and thus should not significantly affect or burden the authority of the States to govern themselves.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The revisions to the regulations addressed in this rule are intended to facilitate the public understanding of the rulemaking process for critical habitat, and thus should not significantly affect or burden the judicial system.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We analyzed this rule in accordance with the criteria of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(c)), 43 CFR part 46, and 516 Departmental Manual (DM) 2 and 8.

A categorical exclusion from NEPA documentation applies to policies, directives, regulations, and guidelines that are “of an administrative, financial, legal, technical, or procedural nature” (43 CFR 46.210(i)). However, even if an individual Federal action falls within a categorical exclusion, the Service must still prepare environmental documents pursuant to NEPA if one of the 12 exceptions listed in 43 CFR 46.215 applies.

We have reviewed each of the 12 exceptions and have found that because this rule is administrative in nature (i.e., we are making optional the inclusion of any textual description of the boundaries of the designation in the Federal Register ), none of the exceptions apply. Therefore, this action meets the requirements for a categorical exclusion from the NEPA process

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 “Consultation and Coordination with Indian Tribal Governments,” and the Department of the Interior Manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Native American Tribes on a government-to-government basis. We have evaluated the potential effects on federally recognized Tribes from these revisions to our implementing regulations for critical habitat. We have determined that there are no potential effects to federally recognized Tribes, since the revisions to the implementing regulations are intended to facilitate the public understanding of critical habitat designations and save taxpayer monies. We will, however, continue to coordinate with Tribes as we promulgate critical habitat designations.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. “Significant energy action” means any action by an agency (normally published in the Federal Register ) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking that is a significant regulatory action under Executive Order 12866 or any successor order, and is likely to have a significant adverse effect on the supply, distribution, or use of energy; or that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This rule to revise the implementing regulations for designating critical habitat does not qualify as a significant regulatory action under Executive Order 12866 and will not have a significant adverse effect on the supply, distribution, or use of energy, and has not been designated by the Adminstrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

The primary authors of this package are staff members from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

Accordingly, we are amending parts 17, 226, and 424, title 50 of the Code of Federal Regulations, as set forth below:

Explanation of Withdrawal and Republication of GOM Cod Interim Measures

NMFS published the information that follows in this rule's preamble, classification, and amendatory language on April 3, 2012 (77 FR 19944), in the Federal Register . The interim rule measures were issued under authority of section 305(c) of the Magnuson-Stevens Act and were designed to become effective on May 1, 2012, the first day of the 2012 GOM cod fishing year. The initially published interim rule did specify that the measures were to become effective on May 1, 2012, and were to be in effect for 180 days from the date of publication (April 3-September 30, 2012). The interim rule was published in advance of the start of the fishing year to afford advanced notice of the measures to fishery participants and the interested public.

However, the effective date specified in the April 3, 2012 published interim rule is inconsistent with NMFS's authority provided by section 305(c) of the Magnuson-Stevens Act, which specifies that interim rules cannot be effective for more than 180 days from the date the rule publishes in the Federal Register . However, the rule was intended to be effective for 180 days from May 1, 2012, not April 3, 2012. Because the language pertaining to effective dates for interim rules is specific in the Magnuson-Stevens Act, NMFS could not issue a correction notice to change the effective date and reset the 180-day effective period.

To ensure that the interim rule measures effective date (May 1, 2012) and duration (180 days) is both correct and consistent with the authority provided to NMFS by the Magnuson-Stevens Act, we withdrew the rule published on April 3, 2012 (77 FR 19944), and are now republishing the rule in the Federal Register , with minimal changes to explain the withdrawal and republication. For clarity, the language, descriptions, measures, and rules being implemented by this rule are the same as those previously published and withdrawn. The language that follows this section is unchanged from the language contained in the previously published and withdrawn rule.

A recent assessment of the amount of cod found in the GOM was finalized in January 2012. The results are substantially different from those from a similar examination conducted in 2008. The new assessment concludes that GOM cod are “overfished,” meaning there is a lower amount of fish than necessary to sustain the population over the long term. It also concludes that GOM cod are subject to “overfishing,” meaning fishing activities are removing too many fish from the sea to sustain the population. The required population and fishing-related removal levels are set for GOM cod under a fishery management plan developed by the New England Fishery Management Council (Council) in collaboration with NMFS. This plan is designed to satisfy requirements of the primary law governing U.S. fisheries—the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The new assessment indicates that increasing GOM cod to the rebuilding stock size target is not possible by 2014, even if no cod are harvested by fisheries between now and then. Based on the information in the new assessment, NMFS has determined that the GOM cod rebuilding program is not making adequate progress toward building the stock to the required size. NMFS has notified the Council of this finding. Based on this notification and in accordance with Magnuson-Stevens Act requirements, the Council must revisit the GOM cod rebuilding plan and revise it within the next two years so that the recovery effort is back on track. NMFS also advised the Council that there is some limited flexibility the agency may use to reduce, rather than end, overfishing on GOM cod for up to one year. The Council had originally intended to use the new assessment information and recommend measures for fishing year 2012 (May 1, 2012-April 30, 2013). However, the Council elected not to do so, based on concerns about the new assessment. Instead, the Council has asked NMFS to implement interim measures for the fishing year, under its authorization to do so provided by section 305(c) of the Magnuson-Stevens Act.

In response to the Council's request, NMFS has decided that it is necessary and appropriate to implement this interim action to address overfishing of GOM cod using NMFS' authority in the Magnuson-Stevens Act (see Justification for Interim Action section later in this preamble for additional detail). In anticipation of implementing an interim rule, NMFS held several meetings with the Council, stakeholders, and interested parties. The objective of these meetings was to help identify fishing measures for the 2012 fishing year that will reduce overfishing. The measures implemented by this interim rule reduce GOM cod catch levels available to fishermen by approximately 17 percent from 2010 catch levels and 22 percent from 2011 catch levels, reduce the rate of fishing mortality by approximately 23 percent from the 2010 rate and approximately 4 percent from the 2011 rate, and therefore are consistent with Magnuson-Stevens Act requirements. These measures are based, in part, on the input from the meetings and are intended to reduce the magnitude of negative economic impact to fishery participants, fishery-dependent businesses, and coastal communities in New England in comparison to taking a more strict action to achieve reductions from 2010 catch levels by 84 percent and from 2011 catch levels by 85 percent that would be necessary to end overfishing.

This action implements catch levels and recreational management measures designed to reduce rather than end overfishing on the GOM cod stock in fishing year 2012. The Council intends to revisit the stock's rebuilding plan over the next two years and to develop measures to end overfishing on GOM cod starting in fishing year 2013 (May 1, 2013-April 30, 2014).

This interim rule implements a total GOM cod total annual catch limit (ACL) of 6,700 mt and divides this catch limit among the fishery as follows: Sectors, 3,618 mt, with an additional 471 mt as carryover; Common Pool, 81 mt; Recreational, 2,215 mt; State Waters, 253 mt; and Other Sub-component, 62 mt. This rule also implements a 19-inch (48.26-cm) minimum fish size for recreationally caught GOM cod and a recreational possession limit of 9 fish per angler. This rule is effective for 180 days.

NMFS is requesting comment on these interim measures in anticipation of extending the measures this fall to ensure measures are in place for the entire 2012 fishing year. Further, in response to public input, additional analysis is planned during 2012 to re-examine some components of the recent stock assessment. NMFS cannot predict how this additional analysis may influence what is known about the size and condition of the GOM cod population. It is possible that changes to measures may be necessary to respond to comments or new information when catch and management measures are extended this fall.

Additional detail is provided in the remainder of the preamble to this rule.

The Northeast (NE) Multispecies Fishery Management Plan (FMP) specifies management measures for 16 fish species that occur in Federal waters off the New England and Mid-Atlantic coasts. Cod, along with haddock, yellowtail flounder, pollock, American plaice, witch flounder, white hake, windowpane flounder, Atlantic halibut, winter flounder, redfish, and Atlantic wolffish are referred to as “regulated species,” in that they are subject to large mesh size requirements through the FMP. These regulated species are jointly managed by the Council and NMFS. Several of the regulated species are further subdivided into 19 separate stocks. These stocks, along with ocean pout, form the groundfish fishery complex managed under the FMP. There are two recognized stocks of cod in the U.S. portion of the North Atlantic: GOM and George's Bank.

Amendment 13 to the FMP, developed by the Council and implemented by NMFS, established a program designed to rebuild the GOM cod stock from low population levels. This program, implemented in 2004 (69 FR 22906; April 27, 2004), was designed to rebuild the GOM cod stock in 10 years, by May 1, 2014.

Comprehensive assessments of the GOM cod stock were conducted in 2005, 2008, and most recently in December 2011 (published in January 2012). The 2008 assessment, conducted by NMFS' Northeast Fisheries Science Center (NEFSC) in collaboration with state agency scientists, academia, and industry-hired consultants, and externally peer-reviewed by the Center for Independent Experts, indicated that the GOM cod stock was likely to rebuild by 2014, consistent with the rebuilding plan.

The new assessment, conducted through a similar collaborative and peer-review process, provided a new and significantly revised scientific understanding of the status of GOM cod. The most recent assessment indicates that rebuilding the stock to the biomass target of 61,218 mt would not be possible by 2014 even in the absence of all fishing mortality. Additionally, this assessment indicates that the stock is subject to continued overfishing and is overfished. Because the most recent assessment provides a substantially changed perspective for the status of GOM cod, the inability to adequately rebuild the stock is the fault of neither the Council nor fishery participants.

Additional detail on all the GOM stock assessments, including the most recent assessment results, are available on the NEFSC stock assessment-related Web site ( http://www.nefsc.noaa.gov/nefsc/saw/ ) and are not further summarized here.

Based on the new assessment, the fishing mortality rate (F) on GOM cod in 2010 was 1.14. Based on the Council's Plan Development Team (PDT) analysis, the current projection indicates F for 2011 is 0.92. The overfishing threshold calculated by the assessment is an F of 0.2; thus to end overfishing, the F rate would need to be reduced by at least 82 percent from the 2010 rate and 78 percent from the 2011 rate to be at or below the overfishing threshold.

The mechanism for reducing F is to reduce catch. To achieve the level of reduction in F to end overfishing immediately (i.e., F = 0.2 or less), the assessment calculated that total catch limit for fishing year 2012 would need to be 1,313 mt, and stock biomass would increase to 11,463 mt in 2013. Further, the Council established in Amendment 13 that it would set an F rate at 75 percent of the overfishing threshold of 0.2 for an F of 0.15. This 0.15 F rate would result in a catch limit of 1,001 mt in fishing year 2012, and stock biomass would increase to 11,838 mt in 2013. Reductions in catch limits of this magnitude would end overfishing; however, this would have significant negative economic impacts to fishery participants, fishing-related industries in New England, and coastal communities in the region.

The Council was aware that the new assessment for GOM cod was being conducted in December 2011, and that final results from the assessment would be available in early 2012. Typically, the Council takes final action on recommendations for the subsequent fishing year in November of the preceding year (i.e., November 2011 for 2012 measures). Because the timing of the GOM cod assessment complicated the normal process used, the Council had included a range of potential catch levels in its analysis of Framework Adjustment 47 to the FMP (FW47). The Council took final action on FW47 in November 2011. The Council intended to have its PDT and Scientific and Statistical Committee (SSC) review the assessment results in early 2012 to provide advice for a GOM cod Acceptable Biological Catch (ABC) for fishing year 2012. Subsequently, the Council expected to finalize GOM cod catch recommendations to NMFS for inclusion in the FW47 rulemaking.

However, as the preliminary GOM cod assessment results became available, the Council grew concerned about the assessment as well as the potentially low catch levels that appeared to be required for the 2012 fishing year. It was at this point that NMFS began a detailed examination of potential options for the fishing year and concurrently began meeting with the Council and stakeholders.

When the assessment results were finalized in late January 2012, NMFS notified the Council, as required by section 304(e)(7) of the Magnuson-Stevens Act, that the GOM cod rebuilding program is not making adequate progress toward rebuilding the stock based on the new and significantly revised scientific understanding of the stock's status. Based on this determination and subsequent notification to the Council, NMFS has determined the Secretary of Commerce (Secretary) may take interim action for up to one year under section 304 (e)(6) of the Magnuson-Stevens Act to reduce rather than end overfishing on GOM cod while the Council revisits the rebuilding program. Measures to reduce rather than end overfishing must, at a minimum, maintain the current GOM cod stock size and preferably, should result in an increase in the stock size. Further, the reduction in overfishing must be appreciable.

In addition, to invoke the flexibility of section 304(e)(6) of the Magnuson-Stevens Act for fishing year 2012, the Council must be in the process of revising the GOM cod rebuilding program for completion within 2 years for implementation no later than May 1, 2014. The Council has stated its intent to address the rebuilding needs and NMFS anticipates collaborating with the Council on the development of stock-rebuilding measures over the months to come.

The Secretary may implement emergency or interim measures for only up to 1 year under the emergency action authority provided by section 305(c) of the Magnuson-Stevens Act. The Council is expected to develop measures to end overfishing beginning with the 2013 fishing year, which starts May 1, 2013.

Upon receiving the preliminary GOM cod assessment results in early 2012, the Council asked the SSC not to recommend an ABC in part due to concerns about the assessment. Subsequently, the Council did not recommend ABC or ACLs in FW 47 for GOM cod. Instead, the Council, relying on the notification and flexibility measures previously described, voted to request of NMFS that it implement an interim action to reduce rather than end overfishing for fishing year 2012. In making this request, the Council recommended that NMFS implement interim GOM cod catch and recreational fishery management measures for the 2012 fishing year. The Council recommended three specific items to NMFS for consideration in developing and implementing interim measures:

• Setting a total GOM cod ACL in a 6,700 to 7,500 mt range;

• Modifying the recreational management measures with particular emphasis on reductions in the possession/bag limit and minimum fish size to reduce discards; and,

• Re-opening several existing closed areas: Nantucket Lightship Closed Area year round, Closed Area I from 1 May 1-February 15, Closed Area II south of 41°50′ May 1 through February to selective fishing gear, and a portion of the both the Western GOM Closed Area and Cashes Ledge Closed Area year round.

After considering the Council recommendations and public input from outreach meetings, NMFS implements, through this interim action, the following measures for the commercial and recreational GOM cod fisheries for fishing year 2012. These measures, based on a total GOM cod ACL of 6,700 mt, are expected to reduce overfishing. The assessment found an F of 1.14 for 2010 and PDT-conducted analysis has projected an F of 0.92 for 2011. The 6,700 mt catch limit established for this rule is expected to produce an F of 0.879, or a reduction in F of 23 percent from 2010 and 4 percent from 2011. Fishing under these measures in fishing year 2012 is expected to increase spawning stock biomass by 19 percent, from 8,618 mt in 2012, to 10,235 mt in 2013.

As noted above, if overfishing were ended in 2012 based on an F rate of 0.2, the ACL would be 1,313 mt, and the 2013 stock biomass would increase to 11,463 mt. If the fishery were closed in fishing year 2012, the 2013 stock biomass would increase to 13,073. Under the Council's recommended upper bound ACL of 7,500 mt for fishing year 2012, the 2013 stock biomass would increase to 9,564 mt, but the F rate would increase to 1.031 (i.e., overfishing would not be reduced).

There are several compelling reasons why NMFS is implementing an ACL of 6,700 mt as opposed to a higher or lower limit. Fishing at this level is likely to reduce overfishing to an appreciable degree while allowing meaningful mitigation of negative impacts for fishing year 2012 resulting from the reduced ACL while the Council develops revisions to the GOM cod rebuilding program. Fishing at 6,700 mt in fishing year 2012 is projected to allow growth in the GOM cod biomass and should not significantly influence the fishing year 2013 catch level. The magnitude of reduction needed for fishing year 2013 is so substantial that it is unlikely that the 2013 ACL will be greater than 3,000 mt. This would be true even if the fishing year 2012 ACL were set at a much lower level.

The 6,700 mt ACL is consistent with National Standard 8, which requires fishing measures to minimize adverse economic impacts on fishing communities while remaining consistent with conservation requirements. Adopting a measure effectively eliminating the GOM cod harvest for 2012 could permanently remove the smaller fishing operations from the fishery, without a significant corresponding benefit (e.g., in terms of increasing stock biomass). Setting the ACL at this level is further justified as an equitable measure as it recognizes that the need for more severe reductions of GOM cod fishing mortality is not the result of a failure of the FMP or the fishing industry in complying with FMP measures, but rather it is the result of a sudden change in the understanding of the GOM cod stock status. In light of this sudden change in the assessment, this fishing level is particularly needed to help mitigate the negative economic impacts in the transition year before more restrictive measures having more substantial adverse impacts are necessary for the 2013 fishing year.

Rationale for the agency's decision not to adopt some recommendations is also provided within each following sub-section.

This action implements a total GOM cod ACL of 6,700 mt for fishing year 2012. Normally, the sub-ACL allocations are derived from the ABC; however, for the interim action no ABC has been set by the Council. To determine sub-ACLs, NMFS calculated a proxy for ABC from the ACL of 6,700 mt. This results in a proxy ABC value of 7,066 mt. Under the Council's procedures for setting ACLs, the ACL is set 5 percent lower for commercial fisheries and 7 percent lower for the recreational fishery to offset management uncertainty. However, instead of using the FMP-established distribution percentages for calculating the sub-ACLs from ABC, this action modifies the distribution percentages by reducing State Waters and Other Sub-component catch levels, and shifting tonnage from those sub-components to the commercial fishery. The revised sub-sector ACLs are shown in Table 1.

Consistent with the FMP, the recreational fishery sub-ACL was calculated first. The remaining tonnage was apportioned across the four commercial fishery sub-components: Sectors, Common Pool, State Waters, and the Other Sub-component.

The adjustment in commercial catch levels was done to help ensure that sector carryover, if maximized to 10 percent from fishing year 2011 and fully utilized in fishing year 2012, would not cause fishing to increase above the projected fishing year 2011 level. Neither the State Waters nor Other Sub-component categories were fully utilized in fishing year 2010, nor are they projected to be fully harvested in fishing year 2011. NMFS has moved tonnage from these two categories to the Commercial (Sector and Common Pool) sub-ACLs to provide a buffer for sector carryover from fishing year 2011. The catch from state waters was approximately 250 mt, and catch attributed to the other sub-component category was approximately 60 mt in fishing year 2010. It is expected that these sub-sectors will harvest around that same amount in fishing year 2011. NMFS has reduced the catch components for the two categories from 468 to 253 mt (State Waters) and 234 to 62 mt (Other Sub-component) and reapportioned the 387 mt derived from these fisheries to the Total Commercial ACL. The Commercial ACL is then subdivided to the sub-ACLs for the sector and the common pool fisheries.

Incidental catch TACs are specified for certain stocks of concern (i.e., stocks that are overfished or subject to overfishing) for common pool vessels fishing in the special management programs (i.e., special access programs and the Regular B Days-At-Sea (DAS) Program), in order to limit the catch of these stocks in these programs. The Incidental Catch TAC for each stock is based on the Common Pool sub-ACL and is distributed to each special management program using a predetermined formula specified in the implementing regulations for the FMP. Any catch on a trip that ends on a Category B DAS (either Regular or Reserve B DAS) is attributed to the Incidental Catch TAC for the pertinent stock. Catch on a trip that starts under a Category B DAS and then flips to a Category A DAS is attributed to the Common Pool sub-ACL.

The incidental catch TAC for GOM cod is 1 percent of the common pool sub-ACL. For fishing year 2012, the incidental catch TAC is 0.81 mt, and 100 percent of this incidental catch TAC is allocated to the Regular B DAS Program.

Beginning in fishing year 2012, Common Pool trimester TACs outlined in Amendment 16 become effective. The Common Pool sub-ACL for each stock will be divided into trimester TACs at the start of the fishing year. The percentage of each sub-ACL allocated to each trimester was determined in Amendment 16. The regulations require that once 90 percent of an applicable trimester TAC is caught, the area where 90 percent of the catch for the pertinent stock occurred will be closed. The area closure will apply to all common pool vessels fishing with gear capable of catching the pertinent stock. Any overages or underages of the trimester TAC in Trimester 1 or Trimester 2 will be applied to the next trimester (e.g., any remaining portion of the Trimester 1 TAC will be added to the Trimester 2 TAC). Any overage of the total sub-ACL will be deducted from the following fishing year's Common Pool sub-ACL for that stock. Uncaught portions of the Trimester 3 TAC will not be carried over into the following fishing year.

Table 2 contains the fishing year 2012 trimester TACs for GOM cod.

The fishing year 2012 sector rosters will not be finalized until May 1, 2012. Therefore, the allocation of the Commercial ACL between the Common Pool and Sector sub-ACLs for GOM cod may change due to changes in the sector rosters. An updated Sector sub-ACL, Common Pool sub-ACL, incidental catch TAC, and trimester TACs for GOM cod will be published in a subsequent adjustment rule, if necessary, based on the final fishing year 2012 sector rosters as of May 1, 2012.

NMFS weighed several options for addressing GOM cod sector carryover. NMFS considered providing less than the 10-percent carryover, as well as options that would have allowed carryover to occur above and beyond the total fishery ACL. However, the only viable options to ensure that the potential fishing year 2012 catch would not increase overfishing in light of the new assessment were scenarios that kept all potential catch, both sub-ACLs and carryover, within the total fishery ACL of 6,700 mt. Allowing catch to exceed 6,700 mt could cause overfishing to occur at levels equal to or higher than the overfishing level in fishing year 2011. Thus, the potential fishing year 2011 sector carryover of 471 mt is being allowed in conjunction with the Sector sub-ACL of 3,618 mt. The sub-ACL of 3,618 mt will be used to calculate Sector Annual Catch Entitlement (ACE). Overall, this is an 83-mt reduction from the Sector sub-ACL of 3,701 mt discussed publically at the February 10, 2012, GOM Cod Working Group meeting in Portsmouth, NH. If the sector sub-ACL and full 10-percent carryover are caught in fishing year 2012, the total sector catch will be 4,089 mt. By constraining potential carryover catch within the total fishery ACL, overfishing will be reduced in fishing year 2012 from 2011 levels. If all recreational and commercial fishery components, including a potential sector harvest of 4,089 mt (i.e., sub-ACL plus 10-percent carryover) catch their full allocations, the total catch will be 6,700 mt under this apportionment scheme.

Consistent with the existing regulations, accountability measures (AMs) for the State Waters and Other Sub-component sub-ACLs are implemented only if the total ACL (i.e., 6,700 mt) is exceeded and the State Waters and/or the Other Sub-component sub-ACLs are also exceeded. If the State Waters and/or Other Sub-component sub-ACLs are exceeded and the total ACL is not, no AMs are implemented.

As indicated in Table 1, the recreational sub-ACL for fishing year 2012 is 2,215 mt. NMFS is reducing the recreational GOM cod minimum fish size from 24 to 19 inches (60.96 to 48.26 cm) and is reducing the per-angler possession limit from 10 to 9 fish. Preliminary analysis indicates that these measures will sufficiently reduce recreational catch to ensure that the revised recreational sub-ACL of 2,215 mt will not be exceeded in fishing year 2012. NMFS engaged the Council's Recreational Advisory Panel (RAP) and recreational fishery stakeholders during development of these measures in a public meeting held February 10, 2012, in Portsmouth, NH. These measures were supported for use by the Council's RAP. Most stakeholders present at the meeting also supported these measures for fishing year 2012.

It may seem counterintuitive that reducing the minimum fish size will reduce total catch. The most recent stock assessment assumes that all recreational discarded cod die—a discard mortality assumption of 100 percent. The reduction in minimum fish size is expected to increase overall effort by a minor amount; however, analysis indicates that anglers will likely have higher success in catching legal-sized fish more quickly, so that there will theoretically be fewer discarded fish within trips. There is also a lower average fish weight with the lower minimum fish size that has some effect in reducing the total recreational landings amount.

Anglers are reminded that the per-person limit is a possession limit. The act of “high-grading,” or discarding previously captured smaller fish for larger fish is strongly discouraged, as it would undermine the management program.

The interim measures implemented by this rule were developed through a new analytical model. The theory of its operation is as previously outlined and is sound. However, the model, its underlying assumptions, and output have not yet been subject to the type of rigorous review typically used before providing advice for management. To be clear, this model is new, untested, and not yet peer-reviewed. There exists some uncertainty about the effectiveness of the measures produced, particularly if anglers “high grade” to keep larger cod. The previously used approach for deriving recreational management measures did not consider discard mortality of 100 percent. NMFS has determined that using this new model in the limited, short-term context of this interim rule is appropriate given the caveats discussed in this preamble.

Prior to the expiration of this temporary rule, NMFS intends to rigorously review the new model and will work to have some level of external review of the model, the underlying assumptions, and the output generated during the period between issuing these interim measures and the renewal of interim measures after 180 days. Recreational measures will be revisited once the model has been peer-reviewed to ensure that the measures are effective in meeting the catch reductions necessary for the 2012 fishing year (i.e., to constrain catch within the recreational sub-ACL).

In addition, it is possible that NMFS will re-evaluate or otherwise re-visit the 100-percent discard mortality assumption utilized in the most recent assessment during the course of the 2012 fishing year. The discard mortality assumption used in the assessment is also used to monitor catch in the fishery. If the assumed discard mortality of recreationally caught fish were to change from 100 percent to a lower value, the effectiveness of a reduced minimum fish size could be less.

Based on these ongoing examinations, it is possible that NMFS may need to include changes to recreational management measures when these interim measures are extended after 180 days in October 2012. There are two possible outcomes:

• The modeling approach is valid and appropriate and the discard mortality assumption is unchanged.

In this scenario, it is unlikely that any changes to the interim recreational measures implemented by this rule would be necessary.

• The model-generated advice is found to be inappropriate to achieve the required reduction and/or the discard mortality assumption is changed to a level less than 100 percent.

Under this scenario, it is likely that additional, more restrictive measures would be necessary for the second half of the fishing year—essentially for April 16-30, 2013, due to the GOM recreational cod closure currently in place from November 1-April 15. This is the more problematic scenario, as fishing will have already occurred for 6 months and more restrictive measures would be implemented mid-year. NMFS anticipates working closely with the Council's RAP and the recreational fishing industry in developing any mid-year changes to reduce catch, should such measures become necessary. Such measures would likely include at least some closure of the fishery in April 2013, and/or increases to minimum fish size, and/or reduction in possession limits. There is also the potential for changes in our understanding of GOM cod status. See the 6-month renewal of interim measures section for additional detail.

NMFS is not taking action at this time to re-open those closed areas as requested by the Council. NMFS finds that there are several compelling reasons for not modifying these closed areas through this interim or other emergency action. While the agency did receive some input supporting the Council's request, the majority of comments received through correspondence and at the February 10, 2012, GOM Cod Working Group meeting requested that NMFS leave in place the existing closed areas.

The process for evaluating the biological impacts to fish stocks, particularly GOM cod, as well as the habitat protection requirements outlined in the Magnuson-Stevens Act, involves complex analyses. Such analyses could not be completed in a thorough, deliberative, and transparent manner in the time period NMFS had to develop and implement the interim measures contained in this rule.

The Council continues to develop a comprehensive omnibus amendment process to address the Essential Fish Habitat requirements of the Magnuson-Stevens Act. This process is undertaking analysis that contemplates modification of many of the closed areas. This process is tentatively scheduled to be completed in 2013. In addition, the PDT continues to discuss and analyze stock-level impacts of re-opening closed areas. It is appropriate to examine potential changes to the closed areas through these deliberative Council processes to ensure that analysis to support any changes is both robust and conducted in a transparent manner.

NMFS' interim authority is available for up to 180 days in an initial action and may be extended up to an additional 186 days by a subsequent rule. This system provides for a full year of interim measures, when necessary. NMFS will renew interim measures in October 2012 to ensure coverage of the entire 2012 fishing year. We are accepting comment on these initial interim measures for consideration on the extension to be issued this fall.

It is expected that additional information regarding calendar and fishing year 2011 catch will become available between now and the 6-month renewal of this action. In addition, several concurrent processes are underway to more closely examine components of the most recent GOM stock assessment. These include the assumed discard mortality rate, analysis of industry catch-per-unit-effort data, further development and potential incorporation of Marine Recreational Information Program data, and potentially other components of the assessment. Additional recreational analysis may be conducted pending review of the modeling approach used to develop measures for this rule. It is possible that any one or several of these ongoing efforts may provide additional information on the status of GOM cod and/or the appropriateness of the measures being implemented by this initial set of interim measures. NMFS will work closely with the Council, public, and interested parties to openly discuss potential catch-level or management measure changes necessary for the second half of fishing year 2012.

It is not possible to predict whether changes, either more liberal or more constraining, may become necessary to reduce overfishing and/or to ensure ACLs are not likely to be exceeded; however, as previously stated, the current situation for GOM cod is highly unusual. We remain committed to providing as much information as possible as quickly as practical so that business and fishing-related operations can be planned.

The Magnuson-Stevens Act authorizes the Secretary to act if (1) the Secretary finds that an emergency involving a fishery exists; or (2) the Secretary finds that interim measures are needed to reduce overfishing in any fishery; or (3) if the Council finds one of those factors exists and requests that the Secretary act. See section 305 of the Magnuson-Stevens Act. Where such circumstances exist, the Secretary may promulgate emergency rules or interim measures “to address the emergency or overfishing”. 16 U.S.C. 1855(c)(1) and (2). The Secretary has delegated this authority to NMFS. Further, NMFS has issued guidance defining when “an emergency” involving a fishery exists. 62 FR 44421; August 21, 1997. This guidance defines an emergency as a situation that (1) arose from recent, unforeseen events, (2) presents a serious conservation problem in the fishery, and (3) can be addressed through interim emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and the deliberative consideration of the impacts on participants to the same extent as would be expected under the formal rulemaking process. Under the statute and guidance, the rationale for issuing these emergency and interim regulations is as follows:

The new GOM cod stock assessment indicates that the stock is overfished, is subject to overfishing, and is not making adequate progress toward the rebuilding objective. Neither NMFS nor the Council could have foreseen the GOM cod stock assessment's recent findings, because the previous stock assessment suggested that GOM cod was recovering according to the schedule set out in a prior rebuilding plan. The most recent stock assessment represents a significant and unforeseen change in scientific understanding of the GOM cod stock, and the final stock assessment did not become available to NMFS and the Council until late January 2012.

Both NMFS and the Council agree with the stock assessment's findings. Thus, both NMFS and the Council have determined that overfishing is occurring on GOM cod. Further, based on this information, the Council has found that interim measures are needed to reduce overfishing in the GOM cod fishery, and has requested that NMFS issue emergency regulations designed to reduce overfishing of GOM cod. Accordingly, under the Magnuson-Stevens Act, NMFS, acting by delegation for the Secretary under the previously outlined provisions, is issuing emergency interim measures designed to address the emergency situation concerning the overfishing of GOM cod.

The Acting Administrator, Northeast Region, NMFS, determined that this interim rule is necessary for the conservation and management of the GOM cod fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

Pursuant to 5 U.S.C. 553(b)(B) and 553(d)(3), the Assistant Administrator finds good cause to waive prior notice and an opportunity for public comment on this action along with the 30-day delay in effectiveness, as notice and comment and delayed effectiveness are impracticable and contrary to the public interest. There has been insufficient time to conduct notice-and-comment rulemaking for this action, which is necessary due to recent, unforeseen events; namely, the most recent GOM cod stock analysis indicates that despite the management measures in place, GOM cod is currently overfished and undergoing overfishing. This analysis, which came out in January 2012, has complicated the timing and process for setting catch levels and management measures that normally occurs. As a result of these changes, NMFS has had to quickly conduct substantial and complex analyses to develop rulemaking to ensure that measures to reduce overfishing would be in place by the start of the fishing year on May 1, 2012. These timing complications were unavoidable. The immediate benefits of the interim measures, implemented by this rule, the mitigation of substantial negative economic impacts to fishery participants, associated businesses, and coastal communities that depend on GOM cod-related revenues, outweigh the value of formal advance notice and public comment.

Though notice-and-comment rulemaking is not being conducted, substantial outreach discussions have occurred with the Council, public, and interested parties to explore what measures should be included in this interim action. NMFS has shared a great deal of information with these groups, and has received input on the interim measures from a wide range of stakeholders and interested parties. NMFS requests comment on these interim measures in anticipation of extending the measures this fall to ensure management measures are in place for the entire fishing year.

The normal process for establishing ACLs for GOM cod was substantially impacted for the 2012 fishing year. In a typical process, the Council receives new scientific information by October and decisions on ACLs and any necessary management measures changes would be voted on by the Council in November. By late December/early January of the following year, the Council's recommendations are forwarded to NMFS for rulemaking. The Council would typically forward with its recommendation the comprehensive analyses necessary to satisfy all applicable laws, including the National Environmental Policy Act (NEPA). Notice-and-comment rulemaking would be conducted by NMFS through the spring months and measures would be implemented for the May 1 start of the fishing year.

For the cycle leading into fishing year 2012, the Council and public knew that a new stock assessment for GOM cod would be conducted in December 2011. The Council acknowledged that the assessment could differ from previous management advice and result in a wide range of catch recommendations; thus, it recommended a range of ACLs and other measures for NMFS' consideration in FW47 for implementation beginning on May 1, 2012. The Council had intended to receive the new assessment results in January 2012, evaluate this new information quickly, and finalize its catch and management measures recommendations to NMFS for the 2012 fishing year at its February 1, 2012, meeting. This schedule would allow the Council to utilize the most recent stock assessment information in its recommendation to NMFS.

As stated in the preamble of this rule, the new assessment markedly changed the understanding of the GOM cod stock. It is overfished and subject to overfishing, the rebuilding plan is not making adequate progress, and the stock biomass is at a much lower level than previously believed. The magnitude of change in our understanding of the GOM cod stock was unforeseen. The previous assessment, conducted in 2008, indicated that the GOM cod stock was growing and expected to be rebuilt by 2014. The new assessment directly contradicts those findings and indicates rebuilding will not be achieved by 2014.

The GOM cod catch levels that would result from using the new assessment information, if applied by the Council to end overfishing, would result in very low catch levels for the 2012 fishing year. In light of the substantially changed stock information, the magnitude of negative economic impacts associated with very low catch levels, and a number of assessment-related topics the Council would like to explore further, the Council elected not to formally recommend a specific catch level to NMFS for the 2012 GOM cod fishery. Instead, in understanding that NMFS could utilize limited authority to reduce, but not end, overfishing, in the interim while the Council revisits the GOM cod rebuilding program design, the Council recommended a range of catch and requested NMFS implement interim measures for the 2012 fishing year based on these recommendations. This specific request to the Secretary to act under section 305(c) of the Magnuson-Stevens Act is consistent with NMFS policy guidelines for the use of emergency rules issued August 21, 1997 (62 FR 44421), as it is a request from the Council to address an emergency situation. Had the Council not taken such action, it would have been compelled to recommend very low catch levels for the 2012 fishing year that in turn would have substantial negative economic impacts to the fishery participants and coastal communities in New England that rely on fishing-related revenues. The emergency, in the context of the Council's request, is for NMFS to apply the interim rulemaking provisions of section 305(c) to avoid the significant negative economic impacts to fishery participants and communities that would result from ending overfishing at the beginning of fishing year 2012 (i.e., May 1, 2012).

NMFS received the Council's recommended catch range of 6,700 to 7,500 mt at the February 1, 2012 meeting. NMFS began analyzing this range along with recreational measures for consistency with the requirement to reduce overfishing, and to determine which catch levels would be appropriate within this range. In conjunction with the Council, NMFS held a GOM Cod Working Group meeting on February 10, 2012, in Portsmouth, NH. This group was chaired by the Acting Assistant Administrator for Fisheries. At this meeting, NMFS indicated that fishing at a level higher than 6,700 mt would likely not reduce overfishing on the GOM cod stock. NMFS discussed potential sub-ACLs that would result from fishing at 6,700 mt for the year as well as providing potential changes to the recreational management measures for discussion, should this catch level eventually be implemented. Though no formal recommendations were sought or provided, a great deal of public input was received during this meeting and through correspondence after the meeting. This input was very helpful for NMFS as the interim measures were further developed.

The typical analytical process that is used to inform development of catch and recreational measures spans from late August through late December. Because of the introduction of new and substantially changed GOM cod stock information, these analyses had to be conducted by NMFS within a few weeks' time to ensure that rulemaking-related analyses and development could be conducted and concluded in sufficient time for the start of the fishing year (May 1). Though the work and discussion were conducted as quickly as possible, it was not possible to do so in a manner that provided sufficient time for notice-and-comment rulemaking. NMFS is relying on the collaborative development process for the measures within this interim rule to have provided a meaningful opportunity to engage with the affected public prior to issuing interim measures. Although this rule is becoming effective on May 1, based on the emergency precipitating it, NMFS is allowing the public an opportunity to comment on the measure for 60 days after the rule becomes published. NMFS will address public comments, including any necessary changes, before these interim measures are renewed in 6 months (October 2012).

Similarly, NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive the full 30-day delay in effectiveness for this rule, and to have it become effective on May 1, 2012. That date is the beginning of the fishing year for GOM cod. If this rule does not become effective on May 1, 2012, then the previous ACL and AMs would remain in effect, with the result that overfishing would not be reduced. These measures would increase overfishing on the GOM cod stock and, as such, are inconsistent with the Magnuson-Stevens Act, the stated intent of the GOM cod rebuilding program, and the FMP. Moreover, failing to have the rule effective on May 1, 2012, may lead to confusion in the fishing community as to what regulations govern the harvest of GOM cod. Thus, the 30-day delay is impracticable and contrary to the public interest, and NMFS waives the requirement and makes this rule effective on May 1, 2012.

NMFS has consulted with the Office of Information and Regulatory Affairs (OIRA) and due to the circumstances described above this action is exempt from review under Executive Order 12866.

Under section 608 of the Regulatory Flexibility Act, an agency may waive the requirement to perform a regulatory flexibility analysis for a rule where the agency finds that the “rule is being promulgated in response to an emergency that makes compliance or timely compliance with [the regulatory flexibility analysis requirements] impracticable.” 5 U.S.C. 608. As discussed in the preamble to this interim rule, and as elaborated in this classification section, NMFS takes this action to address an emergency situation in the GOM cod fishery. Undertaking a regulatory flexibility analysis would delay this action and put the GOM cod and any small businesses that depend on it at further risk. Because the nature of this emergency requires immediate action, NMFS finds that compliance with the Regulatory Flexibility Act is impracticable. Thus, the requirements of the Regulatory Flexibility Act are hereby waived.

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

NMFS published a temporary rule containing interim measures to implement GOM cod catch limits and recreational fishing rules for the 2012 fishing year on April 3, 2012 (77 FR 19944). The interim measures were issued under authority of section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and were designed to become effective on May 1, 2012, the first day of the 2012 GOM cod fishing year. However, the effective date specified in the published interim rule is inconsistent with NMFS' authority provided by the MSA. The MSA language that authorizes NMFS to issue interim measures under specific conditions is described in detail in the April 3, 2012, rule and not repeated here.

The MSA authority for interim rules explicitly specifies that measures are effective upon publication in the Federal Register and may remain in place for no more than 180 days. NMFS has authority to extend interim measures for an additional 186 days under the MSA-granted authority. This provides for up to a full year (365 days) of interim measures. NMFS indicated that the interim measures issued in the April 3 rule would be extended by a subsequent rule so that measures remain effective for the duration of the 2012 fishing year which runs from May 1, 2012 to April 30, 2013. The initial 180 day effective period in the April 3 rule was calculated moving forward from the day the rule published, even though the rule states it is effective on May 1. Thus, the initial 180 day period specified in the April 3 interim rule ends on September 30, 2012. An extension of the interim measures for an additional 186 days from September 30, 2012 would be April 3, 2013. This would mean that 27 days of the 2012 fishing year would not have catch and management measures in place for GOM cod.

NMFS had published the measures in advance of the fishing season to provide advance notice to fishery participants and the interested public. Because the rule has published and the effective date outlined in the DATES section is inconsistent with NMFS' authority and creates a situation that would result in an unregulated portion of the 2012 fishing year, the measures and modifications to the Code of Federal Regulations (CFR) implemented by the rule are being withdrawn. NMFS will re-issue the exact measures and regulations previously published on April 3, 2012, for publication in the Federal Register on May 1, 2012. This ensures the effective date begins on the start of the fishing year and is consistent with the MSA section 305(c) authority that specifies interim rules are effective upon publication. This will result in the interim measures expiring on October 27, 2012. NMFS may then be able to extend the interim measures for an additional 186 days to ensure the measures are effective for the entire May 1, 2012-April 30, 2013 fishing year.

NMFS recognizes the withdrawal and re-publication of measures may cause some confusion for fishermen and those interested in the 2012 GOM cod fishery. Because the effective date in the April 3 rule is inconsistent with NMFS authority, it is not possible to simply correct the language. By withdrawing and re-issuing the interim measures for publication in the Federal Register on May 1, 2012, NMFS will ensure that the measures are effective at the start of the fishing year, consistent with both the intent of the previously published interim rule and the MSA authority for issuing interim rules. Furthermore, this withdrawal and re-issuance of the GOM cod 2012 fishing year interim measures will ensure that NMFS may use the MSA authority for a full fishing year, as intended and requested by the New England Fishery Management Council (Council). NMFS intends to explain the need for the withdrawal and re-issuance to the Council, fishery participants, and the interested public.

For the reasons outlined here, the publication on April 3, 2012 (77 FR 19944), implementing temporary rules to 50 CFR part 648 with an effective date of May 1-September 30, 2012, is withdrawn.

As previously stated, NMFS intends to re-issue the measures contained in the April 3, 2012 (77 FR 19944), on May 1, 2012.