Executive Order 12866

The Office of Management and Budget (OMB) has waived the review process required by Executive Order 12866 for this action.

This proposed rule was reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have a retroactive effect. This action would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 1971 of the Act, a person subject to the Order may file a petition with USDA stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order, is not in accordance with the law and request a modification of the Order or an exemption from the Order. The petitioner is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The Act provides that district courts of the United States in any district in which such person is an inhabitant, or has their principal place of business, has jurisdiction to review USDA's ruling on the petition, if a complaint for this purpose is filed within 20 days after the date of the entry of the ruling.

AMS has determined that this rule will not have a significant economic impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), because it only adjusts representation on the Board to reflect changes in production levels that have occurred since the Board was last reapportioned in 2009. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. As such, these changes will not impose a significant impact on persons subject to the program.

There are an estimated 589,182 soybean producers and an estimated 10,000 first purchasers who collect the assessment, most of whom would be considered small businesses under the criteria established by the Small Business Administration (SBA) [13 CFR 121.201]. SBA defines small agricultural producers as those having annual receipts of less than $750,000.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the reporting and recordkeeping requirements included in 7 CFR part 1220 were previously approved by OMB and were assigned control number 0581-0093.

The Act (7 U.S.C. 6301-6311) provides for the establishment of a coordinated program of promotion and research designed to strengthen the soybean industry's position in the marketplace, and to maintain and expand domestic and foreign markets and uses for soybeans and soybean products. The program is financed by an assessment of 0.5 percent of the net market price of soybeans sold by producers. Pursuant to the Act, an Order was made effective July 9, 1991. The Order established an initial Board with 60 members. For purposes of establishing the Board, the United States was divided into 31 States and geographical units. Representation on the Board from each unit was determined by the level of production in each unit. The initial Board was appointed on July 11, 1991. The Board is composed of soybean producers.

Section 1220.201(c) of the Order provides that at the end of each 3-year period, the Board shall review soybean production levels in the geographic units throughout the United States. The Board may recommend to the Secretary of Agriculture (Secretary) modification in the levels of production necessary for Board membership for each unit.

Section 1220.201(d) of the Order provides that at the end of each 3-year period, the Secretary must review the volume of production of each unit and adjust the boundaries of any unit and the number of Board members from each such unit as necessary to conform with the criteria set forth in § 1220.201(e): (1) To the extent practicable, States with annual average soybean production of less than 3,000,000 bushels shall be grouped into geographically contiguous units, each of which has a combined production level equal to or greater than 3,000,000 bushels, and each such group shall be entitled to at least one member on the Board; (2) units with at least 3,000,000 bushels, but fewer than 15,000,000 bushels shall be entitled to one board member; (3) units with 15,000,000 bushels or more but fewer than 70,000,000 bushels shall be entitled to two Board members; (4) units with 70,000,000 bushels or more but fewer than 200,000,000 bushels shall be entitled to three Board members; and (5) units with 200,000,000 bushels or more shall be entitled to four Board members.

The Board was last reapportioned in 2009. The total Board membership increased from 68 to 69 members, with Ohio gaining one additional member. This change was effective with the 2010 appointments.

Currently, the Board has 69 members representing 30 geographical units. This membership is based on average production levels for the years 2001-2005 (excluding crops in years that production was the highest and that production was the lowest) as reported by USDA's National Agricultural Statistics Service (NASS).

This proposed rule would increase total membership on the Board from 69 to 70. Production data for years 2007-2011 (excluding the crops in years in which production was the highest and in which production was the lowest) was gathered from NASS. This change would not affect the number of geographical units.

This proposed rule would adjust representation on the Board as follows:

Board adjustments as proposed by this rulemaking would become effective, if adopted, with the 2013 appointment process.

For the reasons set forth in the preamble, it is proposed that Title 7, part 1220 be amended as follows:

Table of Contents I. Authority II. History of Energy Conservation Standards Rulemaking for Residential Furnace Fans A. Background B. Current Rulemaking Process III. Summary of the Analyses Performed by DOE A. Engineering Analysis B. Markups To Determine Installed Price C. Energy Use Analysis D. Life-Cycle Cost and Payback Period Analyses E. National Impact Analysis IV. Public Participation A. Attendance at Public Meeting B. Procedure for Submitting Requests to Speak C. Conduct of Public Meeting D. Submission of Comments V. Approval of the Office of the Secretary I. Authority

Title III, Part B  1 of the Energy Policy and Conservation Act of 1975, as amended, (EPCA or the Act), Public Law 94-163 (42 U.S.C. 6291-6309, as codified) sets forth a variety of provisions designed to improve energy efficiency and established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances. 2 These include products that use electricity for the purposes of circulating air through duct work, hereinafter referred to as “residential furnace fans” or simply “furnace fans,” the subject of today's notice. (42 U.S.C. 6295(f)(4)(D))

Pursuant to EPCA, DOE's energy conservation program for covered products consists essentially of four parts: (1) Testing; (2) labeling; (3) establishment of Federal energy conservation standards; and (4) certification and enforcement procedures. Subject to certain criteria and conditions, DOE has authority to establish mandatory energy conservation standards for residential furnace fans. EPCA requires DOE to consider and establish energy conservation standards for residential furnace fans by December 31, 2013. (42 U.S.C. 6295(f)(4)(D))

EPCA provides criteria for prescribing new energy conservation standards for residential furnace fans. More specifically, DOE is required to consider standards for these products that: (1) Achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified; and (2) result in significant conservation of energy. (42 U.S.C. 6295(o)(2)(A) and (o)(3)(B)) To determine whether a candidate standard is economically justified, DOE will, after receiving comments on the candidate standard, determine whether the benefits of the standard exceed its burdens to the greatest extent practicable, using the following seven factors:

EPCA also directs that DOE may not prescribe an amended or new standard if the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States at the time that the standard is prescribed. (42 U.S.C. 6295(o)(4))

Before proposing a standard, DOE typically seeks public input on the analytical framework, models, and tools that DOE will use to evaluate standards for the product at issue and the results of preliminary analyses DOE performed for the product. DOE is publishing this document to announce the availability of the preliminary TSD, which details the preliminary analyses, discusses the comments DOE received from interested parties on the Framework Document, and summarizes the preliminary results of DOE's analyses. In addition, DOE is announcing a public meeting to solicit feedback from interested parties on its analytical framework, models, and preliminary results.

There are no current energy conservation standards for residential furnace fans. EPCA, as amended by the Energy Policy Act of 2005 (EPACT 2005), provided DOE authority to consider and prescribe new energy conservation standards for electricity used for purposes of circulating air through duct work by December 31, 2013. (42 U.S.C. 6295(f)(4)(D)) DOE interprets this statutory language as allowing DOE to cover the electricity used by any electrically-powered device used in residential central heating, ventilation, and air-conditioning (HVAC) systems for the purpose of circulating air through duct work.

In initiating this rulemaking, DOE prepared a Framework Document, “Rulemaking Framework for Furnace Fans,” which describes the procedural and analytical approaches DOE anticipates using to evaluate energy conservation standards for residential furnace fans. DOE published a notice that announced both the availability of the Framework Document and a public meeting to discuss the proposed analytical framework for the rulemaking. That notice also invited written comments from the public. 75 FR 31323 (June 3, 2010). The Framework Document is available at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/pdfs/furnace_fan_framework_only_06-4-10v3.pdf .

DOE held a public meeting on June 18, 2010, at which it presented the various analyses DOE would conduct as part of the rulemaking, such as the engineering analysis, the life-cycle cost (LCC) and payback period (PBP) analyses, and the national impact analysis (NIA). Manufacturers, trade associations, environmental and energy efficiency advocates, and other interested parties attended the meeting. The participants discussed the following major topics: (1) Issues pertaining to the scope of coverage of the current rulemaking; (2) product classes; (3) analytical approaches and methods used in the rulemaking; (4) impacts of standards and burden on manufacturers; (5) technology options; (6) distribution channels, shipments, and end users; (7) impacts of outside regulations; and (8) environmental issues.

Comments received since publication of the Framework Document have helped DOE identify and resolve issues related to the preliminary analyses. Chapter 2 of the preliminary TSD, available at the web address given in section III below and in the ADDRESSES section of this notice, summarizes and addresses the comments received in response to the Framework Document.

For the residential furnace fans covered in this rulemaking, DOE conducted in-depth technical analyses in the following areas: (1) Engineering; (2) markups to determine product price; (3) life-cycle cost and payback period; and (4) national impacts. The preliminary TSD that presents the methodology and results of each of these analyses is available at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/furnace_fans.html .

DOE also conducted, and has included in the preliminary TSD, several other analyses that support the major analyses. These analyses include: (1) The market and technology assessment; (2) the screening analysis, which contributes to the engineering analysis; and (3) the shipments analysis, which contributes to the LCC and PBP analysis and NIA. In addition to these analyses, DOE has begun preliminary work on the manufacturer impact analysis and has identified the methods to be used for the LCC subgroup analysis, the emissions analysis, the employment impact analysis, the regulatory impact analysis, and the utility impact analysis. DOE will expand on these analyses in the notice of proposed rulemaking (NOPR).

The engineering analysis establishes the relationship between the manufacturer selling price and product efficiency levels that DOE is evaluating as potential energy conservation standards. This relationship serves as the basis for cost-benefit calculations for individual consumers, manufacturers, and the Nation. The engineering analysis identifies representative baseline products, which is the starting point for analyzing technologies that provide energy efficiency improvements. “Baseline product” refers to a model or models having features and technologies typically found in minimally-efficient products currently available on the market. After identifying the baseline models, DOE estimated manufacturer selling prices by using a consistent methodology and pricing scheme that includes material costs and manufacturer markups. DOE used these inputs to develop manufacturer selling prices for the baseline and more-efficient designs. Later, in the markups analysis to determine the installed price, DOE converts these manufacturer selling prices into installed prices. In the preliminary TSD, section 2.5 of chapter 2 and chapter 5 each provide details on the engineering analysis and the derivation of the manufacturer selling prices.

DOE derives the installed prices for products based on manufacturer markups, distributor markups, contractor markups, and sales taxes. In deriving these markups, DOE determined the major distribution channels for product sales, the markup associated with each party in each distribution channel, and the existence and magnitude of differences between markups for baseline products (baseline markups) and higher-efficiency products (incremental markups). DOE calculates both overall baseline and overall incremental markups based on the product markups at each step in each distribution channel. In the preliminary TSD, section 2.6 of chapter 2 and chapter 6 provide detail on the estimation of markups.

DOE carries out the energy use analysis to estimate the energy consumption of the residential furnace fans installed in the field. Details of the energy use analysis are provided in section 2.7 of chapter 2 and chapter 7 of the TSD.

The LCC and PBP analyses determine the economic impact of potential standards on individual consumers. The LCC is the total cost of the furnace fan to the customer over the life of the product. The LCC analysis compares the LCCs of products designed to meet possible energy conservation standards with the LCCs of the product likely to be installed in the absence of standards. DOE determines LCCs by considering: (1) Total installed cost to the purchaser (which consists of manufacturer selling price, sales taxes, distribution chain markups, and installation cost); (2) the operating cost of the product (energy cost, water and wastewater cost, and maintenance and repair cost); (3) product lifetime; and (4) a discount rate that reflects the real consumer cost of capital and puts the LCC in present-value terms. The PBP represents the number of years needed to recover the increase in purchase price (including installation cost) of higher-efficiency products through savings in the operating cost of the product. PBP is calculated by dividing the incremental increase in installed cost of the higher efficiency product, compared to baseline product, by the annual savings in operating costs. Section 2.8 of chapter 2 and chapter 8 of the preliminary TSD provide details on the LCC and PBP analyses.

The NIA estimates the national energy savings (NES) and the net present value (NPV) of total consumer costs and savings expected to result from new standards at specific efficiency levels (referred to as candidate standard levels). DOE calculated NES and NPV for each candidate standard level for residential furnace fans as the difference between a base-case forecast (without new standards) and the standards-case forecast (with standards). DOE determined national annual energy consumption by multiplying the number of units in use (by vintage) by the average unit energy consumption (also by vintage). Cumulative energy savings are the sum of the annual NES determined from 2018-2047. The analysis period is 30 years long, which is consistent with other rulemakings and sufficiently long to cover the expected life of the product. The analysis period begins in 2018, the expected year of compliance with the new standard. The national NPV is the sum over time of the discounted net savings each year, which consists of the difference between total operating cost savings and increases in total installed costs. Critical inputs to this analysis include shipments projections, product retirement rates (based on estimated product lifetimes), product installed costs and operating costs, product annual energy consumption, and discount rates. Section 2.10 of chapter 2 and chapter 10 of the preliminary TSD provide details on the NIA.

DOE invites input from the public on all the topics described above. The preliminary analytical results are subject to revision following further review and input from the public. A complete and revised TSD will be made available upon issuance of a NOPR. The final rule establishing any new energy conservation standards will contain the final analytical results and be accompanied by a final rule TSD.

DOE encourages those who wish to participate in the public meeting to obtain the preliminary TSD from DOE's Web site and to be prepared to discuss its contents. Once again, a copy of the preliminary TSD is available at: http://www1.eere.energy.gov/buildings/appliance_standards/residential/furnace_fans.html . However, public meeting participants need not limit their comments to the topics identified in the preliminary TSD. DOE is also interested in receiving views concerning other relevant issues that participants believe would affect energy conservation standards for these products or that DOE should address in the NOPR.

Furthermore, DOE welcomes all interested parties, regardless of whether they participate in the public meeting, to submit in writing by September 10, 2012 comments and information on matters addressed in the preliminary TSD and on other matters relevant to consideration of energy conservation standards for residential furnace fans.

The public meeting will be conducted in an informal, conference style. A court reporter will be present to record the minutes of the meeting. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by United States antitrust laws.

After the public meeting and the closing of the comment period, DOE will consider all timely-submitted comments and additional information obtained from interested parties, as well as information obtained through further analyses, and prepare a NOPR. The NOPR will include proposed energy conservation standards for the products covered by the rulemaking, and members of the public will be given an opportunity to submit written and oral comments on the proposed standards.

The time and date of the public meeting are listed in the DATES and ADDRESSES sections at the beginning of this NOPM. The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585-0121. To attend the public meeting, please notify Ms. Brenda Edwards at (202) 586-2945. Any foreign national wishing to participate in the meeting should advise DOE of this fact as soon as possible by contacting Ms. Brenda Edwards to initiate the necessary procedures.

You can attend the public meeting via webinar, and registration information, participant instructions, and information about the capabilities available to webinar participants will be published on the following Web site: https://www1.gotomeeting.com/register/ 914344761. Participants are responsible for ensuring their computer systems are compatible with the webinar software.

The purpose of the meeting is to receive comments and to help DOE understand potential issues associated with this rulemaking. DOE must receive requests to speak at the meeting before 4 p.m., July 23, 2012. DOE must receive a signed original and an electronic copy of statements to be given at the public meeting before 4 p.m., July 23, 2012.

Any person who has an interest in today's notice or who is a representative of a group or class of persons that has an interest in these issues may request an opportunity to make an oral presentation. Such persons may hand-deliver requests to speak, along with a computer diskette or CD in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format to Ms. Brenda Edwards at the address shown in the ADDRESSES section at the beginning of this NOPM between 9 a.m. and 4 p.m. Monday through Friday, except Federal holidays. Requests may also be sent by mail to the address shown in the ADDRESSES section or email to Brenda.Edwards@ee.doe.gov.

Persons requesting to speak should briefly describe the nature of their interest in this rulemaking and provide a telephone number for contact. DOE requests persons selected to be heard to submit an advance copy of their statements at least two weeks before the public meeting. At its discretion, DOE may permit any person who cannot supply an advance copy of their statement to participate, if that person has made advance alternative arrangements with the Building Technologies Program. The request to give an oral presentation should ask for such alternative arrangements.

DOE will designate a DOE official to preside at the public meeting and may also employ a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA. (42 U.S.C. 6306) A court reporter will record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting, interested parties may submit further comments on the proceedings as well as on any aspect of the rulemaking until the end of the comment period.

The public meeting will be conducted in an informal conference style. DOE will present summaries of comments received before the public meeting, allow time for presentations by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a prepared general statement (within DOE-determined time limits) prior to the discussion of specific topics. DOE will permit other participants to comment briefly on any general statements.

At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions from DOE and other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting.

A transcript of the public meeting will be posted on the DOE Web site and will also be included in the docket, which can be viewed as described in the Docket section at the beginning of this notice. In addition, any person may buy a copy of the transcript from the transcribing reporter.

DOE will accept comments, data, and other information regarding this rulemaking before or after the public meeting, but no later than the date provided at the beginning of this NOPM. Please submit comments, data, and other information as provided in the ADDRESSES section. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format and avoid the use of special characters or any form of encryption. Comments in electronic format should be identified by the Docket Number EERE-2010-BT-STD-0011 and/or RIN 1904-AC22 and, wherever possible, carry the electronic signature of the author. No telefacsimiles (faxes) will be accepted.

Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination as to the confidential status of the information and treat it according to its determination.

Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) a date upon which such information might lose its confidential nature due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

The Secretary of Energy has approved publication of this NOPM.

The Department proposes to modify two regulations related to AD and CVD proceedings: The definition of factual information, 19 CFR 351.102(b)(21), and the time limits for the submission of factual information, 19 CFR 351.301. Currently, 19 CFR 351.102(b)(21) defines factual information as: “(i) initial and supplemental questionnaire responses; (ii) data or statements of fact in support of allegations; (iii) other data or statements of facts; and (iv) documentary evidence.” The Department proposes modifying this definition in order to create distinct descriptive categories of factual information that can be submitted in a segment of a proceeding.

The proposed rule identifies five categories of factual information, which are summarized as follows: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). The proposed definition does not change the types of information that can be submitted in a segment of a proceeding; rather, it will allow for more accurate classification of factual information than the current definition.

Currently, 19 CFR 351.301 sets forth the time limits for submission of factual information, including general time limits, time limits for certain submissions such as responses to questionnaires, and time limits for certain allegations. The Department proposes to modify 19 CFR 351.301 so that, rather than providing general time limits, there will be specific time limits based on the type of factual information being submitted, in accordance with the proposed changes to 19 CFR 351.102(b)(21). This will enable the Department to review and analyze the factual information at the appropriate stage in the proceeding, based on the Department's experience in administering the AD and CVD laws, rather than being required to review large amounts of factual information on the record of a proceeding when it is too late to adequately examine, analyze, conduct follow-up inquiries regarding and, if necessary, verify the information. This modification will also provide clarity to persons concerning the deadlines for submissions of certain factual information in a segment of a proceeding, including the submission of factual information to rebut, clarify, or correct factual information that is already on the record.

The Department also proposes to require any person, when submitting factual information, to specify under which subsection of proposed § 351.102(b)(21) the information is being submitted and if the information is submitted to rebut, clarify, or correct factual information already on the record, in order to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. This will enable the Department and interested parties to efficiently identify the factual information and to analyze it in accordance with the purpose for which it is being submitted.

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

Pursuant to Section 603 of the Regulatory Flexibility Act, the Department has prepared the following IRFA to analyze the potential impact that this proposed rule, if adopted, would have on small entities.

The policy reasons for issuing this proposed rule are discussed in the preamble of this document, and not repeated here.

This proposed rule is intended to alter the Import Administration's regulations for AD and CVD proceedings; specifically, to change the definition of factual information and the deadlines for submitting information in AD and CVD proceedings.

The proposed rule would alter several deadlines for submitting factual information in a segment of a proceeding. Information submitted to rebut, clarify, or correct factual information would generally have a deadline of 10 days from the date that the factual information is served on the interested party or filed with the Department, except that information submitted to rebut, clarify, or correct information in an initial questionnaire response would be due 14 days after the initial response is filed with the Department. Factual information voluntarily provided to support allegations regarding market viability and the basis for determining normal value would be due 10 days after the respondent interested party files the response to the relevant section of the questionnaire. Factual information provided to support an allegation of an upstream subsidy would be due 60 days after the preliminary determination.

Deadlines for submissions of factual information to value factors of production and to measure the adequacy of remuneration will be imposed or shortened, as appropriate, but this is expected to have a beneficial impact on small entities that participate in AD and CVD proceedings because they will have the opportunity to review and comment on the Department's preliminary analysis of the information, which is not the case under current regulations.

The legal basis for this rule is 5 U.S.C. 301; 19 U.S.C. 1202 note; 19 U.S.C. 1303 note; 19 U.S.C. 1671 et seq.; and 19 U.S.C. 3538. No other Federal rules duplicate, overlap, or conflict with this proposed rule.

The proposed rules will apply to all persons submitting information to the Department in AD and CVD proceedings. This could include exporters and producers of merchandise subject to AD and CVD proceedings and their affiliates, importers of such merchandise, domestic producers of like products, and foreign governments.

Exporters and producers of subject merchandise are rarely U.S. companies. Some producers and exporters of subject merchandise do have U.S. affiliates, some of which may be considered small entities under the appropriate Small Business Administration (SBA) small business size standard. The Department is not able to estimate the number of exporters and producer domestic affiliates that may be considered small entities, but anticipates, based on its experience in these proceedings, that the number will not be substantial.

Importers may be U.S. or foreign companies, and some of these entities may be considered small entities under the appropriate SBA small business size standard. The Department does not anticipate that the proposed rules will impact a substantial number of small importers because importers of subject merchandise who are not also producers and exporters (or their affiliates) rarely submit factual information in the course of the Department's AD and CVD proceedings, and those that do tend to be larger entities.

Some domestic producers of like products may be considered small entities under the appropriate SBA small business size standard. Although it is unable to estimate the number of producers that may be considered small entities, the Department does not anticipate that the number affected by the proposed rule will be substantial. Frequently, domestic producers that bring a petition account for a large amount of the domestic production within an industry, so it is unlikely that these domestic producers will be small entities.

In sum, while recognizing that exporter and producer affiliates, importers, and domestic producers that submit information in AD and CVD proceedings will likely include some small entities, the Department, based on its experience with these proceedings and the participating parties, does not anticipate that the proposed rule would impact a substantial number of small entities.

The proposed rules will require persons submitting factual information to the Department to specify under which subsection of the proposed definition the information is being submitted. If it is being submitted to rebut, clarify, or correct factual information already on the record, the person will be required to identify the information already on the record that the factual information seeks to rebut, clarify or correct. This will not amount to a significant burden as the submitter should already be aware of the relevant subsection pursuant to which it is submitting factual information; in addition, all of the required information should be readily available to any person submitting factual information to the Department.

As required by 5 U.S.C. 603(c), the Department's analysis considered significant alternatives. The alternatives which the Department considered include: (1) The preferred alternative of modifying the definition of factual information and modifying the time limits, as described in this proposed rule; (2) maintaining the existing definition of factual information and the time limits for the submission of factual information; (3) modifying the definition of factual information but maintaining all time limits; and, (4) modifying the definition of factual information and extending the time limits.

The Department does not anticipate that the first, preferred alternative will have a significant economic impact on small entities. The changes to the definition of “factual information” do not impose any significant burden on the parties in AD or CVD proceedings; the changes do not alter the types of information that may be submitted, but merely re-categorizes them into more logical groupings than the current definition. The changes to the deadlines for submitting factual information are also not expected to have a significant economic impact on small entities. Although some deadlines are shortened, these are either not expected to have a significant impact on small entities or will actually have a positive impact. For example, for the submission of factual information in support of allegations, or to rebut, clarify, or correct factual information, in the Department's experience the parties submitting these allegations or rebuttals/clarifications/corrections will possess the relevant information with sufficient time to submit them before the information would be due.

By contrast, shortening the time limits for the submission of factual information to value factors of production will have a beneficial impact on any small entities that are participating in an AD proceeding, because it will provide them with an opportunity to review and comment on the Department's preliminary analysis of this information. Because the time limits currently permit such information to be submitted after the Department issues its preliminary calculations, parties wishing to assess the significance of this information would need to undertake their own analysis of the often voluminous information submitted. Such analysis of the often voluminous information may be particularly burdensome for small entities. In addition, parties continue to have a significant amount of time to gather this type of information in advance of the time limit because the Department accepts only publicly available information pursuant to this provision. Further, establishing a time limit for the submission of factual information to measure the adequacy of remuneration under § 351.511(a)(2), where the current regulation does not include any time limit, will provide certainty to parties, including those who wish to submit factual information to rebut, clarify or correct the factual information submitted under this provision.

Under alternative two, the Department determined that maintaining the definition of factual information and the time limits provision would not serve the objective of the proposed rules to permit the Department and interested parties adequate opportunity to review and analyze submissions of factual information in an efficient manner. If the Department were to maintain the current rules, then persons would still be able to submit large amounts of factual information on the record of an AD or CVD segment very close to the Department's statutory deadlines for making certain determinations, thus limiting the Department's ability to consider, analyze and, if applicable, verify the information submitted. The current definition and time limits also do not provide sufficient clarity to persons participating in an AD or CVD proceeding, because the current rules do not require persons submitting information to identify the type of information which is being submitted. Although this alternative was considered, it was not adopted because it does not serve the Department's objectives of creating certainty for participants in AD and CVD proceedings.

The Department also considered modifying the definition of factual information without modifying the time limits provision, listed as alternative three. This alternative would serve the objective of the proposed rules to identify more clearly the types of factual information which are submitted in AD and CVD proceedings, but does not serve the goal of enabling the Department to efficiently examine factual information at an appropriate stage in the proceeding. For instance, the Department determined that continuing to allow factual information in an AD or CVD investigation “seven days before the date on which verification of any person is scheduled to commence,” 19 CFR 351.301(b)(1), would run counter to the objectives of the proposed rules because the Department often does not have sufficient opportunity to review adequately submissions of factual information when they are submitted at this stage of the proceeding. In addition, maintaining the time limits for, for instance, the submission of factual information to value factors could deprive persons of the opportunity to comment on the Department's preliminary analysis of these submissions in their case briefs. The changes to the definition to more clearly describe the types of factual information which is submitted in an AD and CVD proceeding, without a corresponding modification to the time limits provision, would not serve the objectives of the Department and, thus, has not been adopted.

Finally, as alternative four, the Department considered extending the time limits for the submission of factual information, but this alternative has not been adopted. The Department is required to make certain determinations for AD and CVD proceedings within prescribed statutory deadlines. The current regulations sometimes do not provide the Department with a sufficient opportunity to examine and analyze submissions of factual information before those statutory deadlines, and in some instances deprive parties of the opportunity to comment on the submissions of factual information in their case briefs. An extension of time limits would exacerbate the problem, which the proposed rules seek to address. Therefore, this alternative has not been adopted.

This rule does not require a collection of information for purposes of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et seq. ).

For the reasons stated, 19 CFR part 351 is proposed to be amended as follows:

In the Notice section of today's Federal Register , the FBI has established a new Privacy Act system of records, the FBI Data Warehouse System, Justice/FBI-022. The system serves as a repository for FBI information and for information lawfully received from other agencies and permits the comparison of data sets in order to provide a more complete picture of potential national security threats or criminal activities. The FBI is also deleting the system of records notice for the Data Integration and Visualization System (DIVS), published at 75 FR 53342 (Aug. 31, 2010) and modified at 75 FR 66131 (Oct. 27, 2010) because the Data Warehouse System will now also cover information that was covered by the DIVS SORN.

In this rulemaking, the FBI proposes to exempt the Data Warehouse System, Justice/FBI-022, from certain provisions of the Privacy Act in order to avoid interference with the law enforcement, intelligence and counterintelligence, and counterterrorism responsibilities of the FBI as established in federal law and policy. The FBI is also replacing the exemption regulation for DIVS with this proposed rule because that system will now be covered by Justice/FBI-022 and this proposed rulemaking. The exemption regulation for DIVS will stay in effect until this rule is final.

This proposed rule relates to individuals rather than small business entities. Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, therefore, the proposed rule will not have a significant economic impact on a substantial number of small entities.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, 5 U.S.C. 801 et seq., requires the FBI to comply with small entity requests for information and advice about compliance with statutes and regulations within FBI jurisdiction. Any small entity that has a question regarding this document may contact the person listed in FOR FURTHER INFORMATION CONTACT . Persons can obtain further information regarding SBREFA on the Small Business Administration's Web page at http://www.sba.gov/advo/archive/sum_sbrefa.html .

The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires that the FBI consider the impact of paperwork and other information collection burdens imposed on the public. There is no current or new information collection requirements associated with this proposed rule. The records that are contributed to this system are created by the FBI or other law enforcement and intelligence entities and sharing of this information electronically will not increase the paperwork burden on the public.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 103-3, 109 Stat. 48, requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. UMBRA requires a written statement of economic and regulatory alternatives for proposed and final rules that contain Federal mandates. A “Federal mandate” is a new or additional enforceable duty, imposed on any State, local, or tribal government, or the private sector. If any Federal mandate causes those entities to spend, in aggregate, $100 million or more in any one year, the UMRA analysis is required. This proposed rule would not impose Federal mandates on any State, local, or tribal government or the private sector.

Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, it is proposed to amend 28 CFR part 16 as follows:

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking GICW Gulf Intracoastal Waterway COTP Captain of the Port LLNR Light List Number A. Public Participation and Request for Comments

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 proposed rulemaking (USCG-2012-0518), 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 at 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, 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-2012-0518) in the “SEARCH” box and click “SEARCH.” 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 proposed 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-2012-0518) in the “SEARCH” box and click “SEARCH.” Click on 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 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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

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

A 36″ subaqueous water main is being constructed across the Choctawhatchee Bay to improve water system delivery. The water main will cross the GICW, a federally maintained navigable channel. Construction of the water main and the required use of turbidity silt curtains pose significant safety hazards to both vessels and mariners operating in or near the GICW. The COTP Mobile proposes to establish a temporary safety zone for a portion of GICW in Choctawhatchee Bay, Santa Rosa Beach, FL. This proposed temporary safety zone is deemed necessary to protect persons and vessels during construction of the water main across the GICW. The legal basis and authorities for this proposed rule are found in 33 U.S.C. 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to propose, establish, and define regulatory safety zones.

The COTP anticipates some impact on vessel traffic due to this proposed regulation. However, the proposed temporary safety zone is deemed necessary for the protection of life and property within the COTP Mobile zone.

The Coast Guard proposes to establish a temporary safety zone for a portion of the GICW in Choctawhatchee Bay from the Highway 331 fixed bridge west to the Red Nun Buoy “26” (LLNR 31510), to include the entire width of the channel. This proposed rule will protect the safety of life and property in this area. Entry into or transiting in this zone, during daylight hours, will be prohibited to all vessels, mariners, and persons unless specifically authorized by the COTP Mobile or a designated representative. The COTP may be contacted by telephone at (251) 441-5976.

The proposed safety zone will be effective for the months of August and September 2012. The COTP Mobile anticipates that this proposed rule will be enforced during daylight hours for approximately seven (7) days sometime between August and September 2012. If the final dates are determined, dates and times will be published in the temporary final rule. The Coast Guard will issue broadcast notice to mariners and local notice to mariners of the exact dates of enforcement of the regulation.

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

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

The temporary safety zone listed in this proposed rule will only restrict vessel traffic from entering or transiting a small portion of the GICW during daylight hours. The effect of this regulation will not be significant for several reasons: (1) The COTP Mobile will issue maritime advisories widely available to users of the waterway; (2) this proposed rule will only affect vessel traffic during daylight hours and that are subject to transiting the GICW due to draft restrictions; and (3) the impacts on routine navigation are expected to be minimal. Notifications to the marine community will be made through Local Notice to Mariners and Broadcast Notice to Mariners. These notifications will allow the public to plan operations around the affected area.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the affected portion of the GICW during construction of the water main. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone is limited in size, is of short duration and shallow draft vessel traffic may pass safely around the temporary safety zone.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this proposed rule would economically affect it.

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 this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule will not call for a 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 the States on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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 proposed rule would not result in such expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.

This proposed 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 proposed 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 proposed rule under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. This proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, because it would 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.

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use 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.

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

We have analyzed this proposed 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 made a preliminary determination 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 proposed rule involves safety for the public and is not expected to result in any significant adverse environmental impact as described in NEPA. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Public Participation and Request for Comments

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, 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 at 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, 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-2012-0574) in the “SEARCH” box and click “SEARCH.” 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 8½ 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-2012-0574) in the “SEARCH” box and click “SEARCH.” Click on 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 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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

We do not now plan to hold a public meeting. But you may submit a request for one on or before July 15, 2012 using one of the 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 .

The legal basis for the proposed rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. The purpose of the proposed rule is to ensure the safety of the swimmers, participant vessels, spectators, and the general public during the ESI Ironman 70.3 Augusta.

On Sunday, September 30, 2012, the ESI Ironman 70.3 Augusta Triathlon is scheduled to take place in Augusta, Georgia. This event includes a 1.1 mile swim that will take place on the waters of the Savannah River. The swim starts at the 6th Street Railroad Bridge and finishes at Mile Post 198.

The temporary safety zone will encompass certain waters of the Savannah River in Augusta, Georgia. The temporary safety zone will be enforced from 7 a.m. until 11:59 a.m. on September 30, 2012. Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Savannah or a designated representative. Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the Captain of the Port Savannah by telephone at 912-652-4353, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the Captain of the Port Savannah or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Savannah or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

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

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

The economic impact of this proposed rule is not significant for the following reasons: (1) The safety zone would be enforced for only 5 hours; (2) although persons and vessels would not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Savannah or a designated representative, they would be able to operate in the surrounding area during the enforcement period; (3) persons and vessels would still be able to enter, transit through, anchor in, or remain within the regulated areas if authorized by the Captain of the Port Savannah or a designated representative; and (4) the Coast Guard would provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities.

This proposed rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Savannah River encompassed within the temporary safety zone from 7 a.m. until 11:59 a.m. on September 30, 2012. For the reasons discussed in the Regulatory Planning and Review section above, this proposed rule would not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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 this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule will not call for a 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 the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed 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 proposed 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.

This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use 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.

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

We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a temporary safety zone on the waters of the Savannah River that will be enforced for a total of five hours. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

Background

In 1973, the State of Georgia enacted the Metropolitan River Protection Act (MRPA) to ensure the protection of the corridor located within 2,000 feet of each bank of the Chattahoochee River, or the corridor located within the 100-year floodplain, whichever is larger. Five years after the enactment of the MRPA, the United States Congress found that the:

On August 15, 1978, President Jimmy Carter signed legislation creating the Chattahoochee River National Recreation Area (CHAT), a unit of the National Park System consisting of “the river and its bed together with the lands, waters, and interests therein * * *.” (16 U.S.C. 460ii). The National Park Service (NPS) is responsible for management of this significant stretch of Riverside Park.

In 1984, Congress amended the CHAT's enabling legislation through Public Law 98-568, which declared the corridor located within 2,000 feet of each bank along the 48-mile river segment “an area of national concern.” A subsequent amendment, passed in 1999, expanded the authorized boundary of CHAT and provided funding to support acquisition of land-based linear corridors to link existing units of the recreation area and to ensure that they are managed to standardize acquisition, planning, design, construction, and operation of the linear corridors. The NPS manages the 48-mile stretch of the Chattahoochee River from top-of-bank to top-of-bank, including all adjacent land elements that occur below the high water mark. The NPS also manages over 5,000 acres of park land, including riverside units and upland forested areas with hiking trails and other recreational opportunities.

In September 2009, the NPS completed a General Management Plan/Environmental Impact Statement (GMP/EIS). Consistent with 36 CFR 4.30, the GMP/EIS states that bicycles are prohibited except on roads, parking areas, and designated routes, noting that this regulation is especially important in light of comments received during the GMP/EIS process from some visitors who view the park corridor as an opportunity to promote non-motorized and less polluting alternatives to automobiles, such as bicycle use. Public comments during the GMP/EIS process also reflected the desire to increase the use of bicycles off-road in the park through development of an interconnected trail system. The final GMP/EIS describes off-road bicycling on trails as an appropriate use in the developed, natural area recreation, and rustic zones.

The proposed rule adds a special regulation for CHAT, designating segments of trails outside of developed areas as routes for bicycle use, as required by the general regulation for bicycle use in the National Park System at 36 CFR 4.30. The proposed rule would designate segments of trails in the Vickery Creek, Johnson Ferry South, and Cochran Shoals units as multi-use trails, allowing both pedestrian and bicycle use.

In 2001, the City of Roswell planned and constructed a multi-use paved trail along the Chattahoochee River, a portion of which crosses the Vickery Creek unit of CHAT. Pursuant to the National Environmental Policy Act of 1969 (NEPA), the park completed a Categorical Exclusion in 2001 that determined there would be minimal impacts from the approximately 500-foot segment of paved multi-use trail that crosses a portion of the Vickery Creek unit. This trail was constructed prior to the GMP/EIS and was consistent with former park planning zones.

The January 2010 Environmental Assessment Proposed Trail Connection Project (EA) evaluated projects to improve trail connectivity and sustainability within the Bowmans Island West, Johnson Ferry South, and Cochran Shoals park units, including new bicycle access in the Johnson Ferry South and Cochran Shoals units. The selected alternative in the EA for the Johnson Ferry South unit includes construction of a 0.1 mile segment of new trail to connect the existing multi-use trail on a park administrative road to a planned underpass below the Johnson Ferry Road bridge. The existing trail is located on an old dirt farm roadbed that is currently being used by both pedestrians and bicyclists. The addition of the 0.1 mile trail segment will allow bicyclists and pedestrians to connect to an alternative transportation network both within and beyond the park boundary. The portion of the trail within the park will be approximately 2.2 miles long. The new 0.1 mile trail segment will use sustainable design principles including routing along the terrain contours, sloping the trail surface to allow for runoff during rain events, and a natural trail surface. This trail segment was evaluated by the EA, and in March 2010 the park completed a Finding of No Significant Impact (FONSI) which concluded that the selected alternative for the Johnson Ferry South unit will not have a significant adverse effect on the human environment. The Johnson Ferry South unit is zoned in the GMP/EIS as a rustic zone, which identifies off-road bicycling as an appropriate use.

The selected alternative in the EA for the Cochran Shoals unit allows pedestrian-only access on a number of trails, but also incorporates a loop-style multi-use trail for both pedestrians and bicyclists. The project will close and revegetate heavily eroded and unsustainable social trails and construct new trail segments to create a sustainable, aesthetically pleasing trail network. The new trail system will use sustainable design principles, including routing along the terrain contours, sloping the trail surface to allow for runoff during rain events, and a natural trail surface. An existing multi-use trail follows an old farm road for 2.4 miles, where off-road bicycling is currently allowed because the trail is on a park administrative road. The final trail plan has 3 miles of hiking-only trails and 6.7 miles of multi-use trails allowing both pedestrians and bicycles. A public scoping meeting was held on October 29, 2009, and 36 public comments were received, which overwhelmingly supported expanding access for bicycling in the Cochran Shoals unit.

During the EA process, some public comments raised concerns regarding bicyclists and hikers sharing trails in Cochran Shoals, citing safety and erosion issues. Conflicts between pedestrians and bicyclists are primarily caused by the difference in speeds between the users. Bicyclists can often travel at higher speeds, and the speed differential between bicyclists and pedestrians may reduce the communication between the users, startle pedestrians, and increase the odds of conflict. To minimize the potential for conflict, the Cochran Shoals trail network was designed to create a 6.7 mile loop-style system, rather than an out-and-back style trail, thereby reducing traffic and congestion at any given point on the trail. The new loop-style trail also reduces the number of users that could potentially cut through or create unauthorized trails in order to avoid repetitive scenery. In addition, park management will implement directional traffic on the trails in the Johnson Ferry South and Cochran Shoals units to limit bicycle-pedestrian conflicts. The Superintendent will exercise discretion to temporarily close bicycle access to these trails following a rain event to address issues concerning erosion and water quality impacts that were also raised during the EA process.

The FONSI concluded that the selected alternative for the Cochran Shoals unit will not have a significant adverse effect on the human environment. The Cochran Shoals unit is zoned in the GMP/EIS as a natural area recreation zone, which identifies off-road bicycling as an appropriate use.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

This rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). There are no businesses in the surrounding area economically dependent on bicycle use on these trails. The park does not have any bicycle rental concessioners and the users are mainly private individuals using the trails for recreational purposes. This certification is based on the cost-benefit and regulatory flexibility analysis found in the report entitled “Cost-Benefit and Regulatory Flexibility Analysis: Proposed Regulations for Trail Management in Chattahoochee River National Recreation Area” which can be viewed on the park's planning Web site, http://www.nps.gov/chat/parkmgmt/planning.htm, then clicking on the link entitled “Chattahoochee River Trail Connection Plan.”

This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq. ) is not required.

Under the criteria in section 2 of Executive Order 12630, this rule does not have significant takings implications. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This proposed rule only affects use of NPS administered lands and waters and has no outside effects on other areas. A Federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required. Representatives of the tribes potentially affiliated with CHAT were contacted during the preparation of the EA for the project.

This rule does not contain information collection requirements, and a submission under the PRA is not required.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because (i) the selected action for the Vickery Creek unit is covered by a categorical exclusion and (ii) we reached a FONSI for the selected actions for the Johnson Ferry South and Cochran Shoals units. We have also determined that this rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis of the selected action for the Vickery Creek unit under NEPA. A copy of the EA and FONSI can be downloaded from the park's planning Web site, http://www.nps.gov/chat/parkmgmt/planning.htm, then clicking on the link entitled “Chattahoochee River Trail Connection Plan.”

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.

We are required by Executive Orders 12866 (section 1 (b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

Drafting Information: The primary authors of this regulation were Joel Brumm, Chattahoochee River National Recreation Area, and Jay P. Calhoun, Regulations and Special Park Uses, National Park Service.

It is the policy of the Department of the Interior, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments regarding this proposed rule by one of the methods listed in the ADDRESSES section.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

In consideration of the foregoing, the National Park Service proposes to amend 36 CFR part 7 as set forth below:

Maryland was designated nonattainment with respect to the 1-hour ozone NAAQS on November 15, 1990, with several serious nonattainment areas, including: the Baltimore, Maryland area, the Maryland portion of the Philadelphia-Wilmington-Atlantic City area, and the Maryland portion of the Washington, DC area. Section 182(b)(1) of the CAA requires states with ozone nonattainment areas classified as moderate or above to submit a SIP revision that provides VOC emissions reductions of at least 15 percent from the baseline emissions of 1990. In Maryland, the 15 percent plans (the 15% rate-of-progress plans) were required for the 1-hour ozone nonattainment areas.

Pursuant to this requirement, Maryland revised its SIP on August 4, 1997 to adopt COMAR 26.11.19.23 “Control of Volatile Organic Compounds Emissions from Vehicle Refinishing.” The regulation would achieve fully enforceable VOC emissions reductions from vehicle refinishing sources throughout the State of Maryland, which were creditable towards the 15% rate-of-progress plans. The rule, which followed EPA's “Alternative Control Techniques (ACT) Document: Automobile Body Refinishing” (EPA-453/R-94-031, April 1994), established standards for vehicle refinishing based on VOC content of coatings, methods for calculating the VOC content of a coating system, and standards for operating, monitoring, reporting, and recordkeeping. The coating categories included: pretreatment coatings, precoatings, primer surfacers, primer sealers, topcoats, multi-stage coating systems, and specialty coatings.

Section 183(e) of the Act authorizes EPA to establish national standards to reduce VOC emissions from consumer and commercial products, including the automobile refinishing coatings. On September 11, 1998, a final rule “National Volatile Organic Compound Emissions Standards for Automobile Refinish Coatings” (EPA's National Rule) was published by EPA under the authority of section 183(e) of the CAA (63 FR 48806), as identified in 40 CFR part 59, subpart B. The federal rule applies to all automobile refinish coatings that are manufactured or imported for sale or distribution in the United States, and sets VOC content limits by automotive refinish category. See EPA's August 1998 report “Volatile Organic Compound Emissions from Automobile Refinishing—Background Information for Promulgated Standards” (EPA-453/R-96-011b).

On January 9, 2008, EPA published the final rule 40 CFR part 63 subpart HHHHHH “National Emission Standards for Hazardous Air Pollutants: Paint Stripping and Miscellaneous Surface Coating Operations at Area Sources” (EPA's 6H NESHAP), which includes automobile refinishing. This Federal rule specifically applies to area sources that engage in paint stripping operations that use methylene chloride (MeCl) containing paint stripping formulations, and in spray application of coatings to motor vehicle and mobile equipment, plastic and or metal substrate, where the coatings contain compounds of chromium, lead, manganese, nickel, or cadmium. Motor vehicle or mobile equipment surface coating operations may petition the EPA's Administrator for an exemption from this rule if the owner or operator can demonstrate, to the satisfaction of the EPA's Administrator, that the spray applied does not include coatings containing any of these compounds. This rule establishes important requirements for these types of facilities, among the following: Training certification of all new and existing personnel who spray surface coatings, minimum training requirements, and installation to all facilities of a filtered spray booth and enclosed spray gun cleaner.

Maryland's 1997 SIP-approved regulation COMAR 26.11.19.23 “Control of Volatile Organic Compounds Emissions from Vehicle Refinishing” complies with the federal standards established in EPA's rules. On May 8, 2012, EPA received a revision to the Maryland SIP submitted by the Maryland Department of Environment (MDE). The SIP revision (#12-04) amends Maryland's COMAR 26.11.19.23 “Control of Volatile Organic Compounds from Vehicle Refinishing,” in order to establish new standards and requirements for VOC, including: VOC content limits for coatings and solvents, controls on emissions from equipment cleaning, the use of coating application methods, recordkeeping, maintenance activities, and operator training. These amendments are based on the 2009 “Model Rule for Motor Vehicle and Mobile Equipment Non-Assembly Line Coating Operations” (MVMERR) developed in conjunction with member states of the Ozone Transport Commission (OTC). The MVMERR established requirements which comply with those established in EPA's National Rule and 6H NESHAP.

The proposed SIP revision establishes VOC content limits for automotive coatings and cleaning solvents used in vehicle refinishing, and standards for coating application, work practices, monitoring, and recordkeeping, to be effective for all affected sources as of July 1, 2013. Sources subject to the requirements of this regulation include: auto body and repair facilities, fleet operator repair and paint facilities, new and used auto dealer repair and paint facilities, and after-market auto customizing and detailing facilities located throughout the State of Maryland; manufacturers, suppliers, distributors of coatings and cleaning solvents intended for use and application to motor vehicles, mobile equipment, and associated components within the State of Maryland; and manufacturers, suppliers, and distributors of application equipment and materials storage such as spray booths, spray guns, and sealed containers for cleaning rags for use within Maryland.

The regulation establishes VOC content limits for 11 categories of automotive coatings and two categories of cleaning solvents which are used in the preparation, application, and drying phases of vehicle refinishing. The VOC content limits established for the automotive coatings and solvents exclude water and exempt compounds as listed in 40 CFR 51.100(s), and are provided in Table 1 and Table 2, respectively.

I. Background

FAR 15.404-1(b)(2) addresses various price analysis techniques and procedures the Government may use to ensure a fair and reasonable price. FAR 15.404-1(b)(2)(i) discusses the comparison of proposed prices received in response to a solicitation as an example of such techniques and procedures. In this discussion, FAR 15.404-1(b)(2)(i) references 15.403-1(c)(1), which sets forth the requirements of adequate price competition. However, only 15.403-1(c)(1)(i) actually addresses the situation when two or more responsible offerors, competing independently, submit priced offers that satisfy the Government's expressed requirement. Therefore, the reference in 15.404-1(b)(2)(i) is more appropriately identified as 15.403-1(c)(1)(i).

Executive Orders 12866 and 13563 (E.O.s) direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

DoD, GSA, and NASA do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule merely clarifies the reference at FAR 15.404-1(b)(2)(i) for the use of the price analysis technique at 15.403-1(c)(1)(i) in order to establish a fair and reasonable price. However, an initial regulatory flexibility analysis (IRFA) has been prepared consistent with 5 U.S.C. 603, and is summarized as follows:

The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this proposed rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR case 2012-018), in correspondence.

The proposed rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, DoD, GSA, and NASA propose amending 48 CFR part 15 as set forth below:

On January 12, 2011, the National Marine Fisheries Service (NMFS) published a final rule establishing identification and certification procedures to address illegal, unreported, or unregulated (IUU) fishing activities and bycatch of protected living marine resources (PLMRs) pursuant to the High Seas Driftnet Fishing Moratorium Protection Act (Moratorium Protection Act) (76 FR 2011) (50 CFR 300.200 et seq. ) (16 U.S.C. 1826h-k). The identification and certification procedures must be amended to reflect recent statutory amendments to the Moratorium Protection Act. These amendments were included in the Shark Conservation Act (Pub. L. 111-348), which was enacted on January 4, 2011.

Sharks present an array of challenges for fisheries conservation and management due to their biological characteristics and lack of general data reported on catch of each species. Many shark species are characterized by relatively slow growth, late maturity, and low reproductive rates, which can make them particularly vulnerable to overexploitation and slow to recover. As demand and exploitation rates for some shark species, and particularly for shark fins, have increased, concern has grown regarding the status of many shark stocks and the sustainability of their exploitation in global fisheries.

The United States continues to be a leader in promoting shark conservation and management globally. We are committed to working bilaterally and multilaterally to promote shark conservation and management, and prevent shark finning so that legal and sustainable fisheries are not disadvantaged by these activities. In particular, the United States wants to ensure that its own import market does not encourage unsustainable activity.

Under the amendments in the Shark Conservation Act, the Secretary of Commerce is required to identify a foreign nation if: (a) the nation's fishing vessels are engaged or have been engaged during the preceding calendar year, in fishing activities or practices in waters beyond any national jurisdiction that target or incidentally catch sharks; and (b) the nation has not adopted a regulatory program for the conservation of sharks, including measures to prohibit removal of any of the fins of a shark (including the tail) and discarding of the carcass of the shark at sea, that is comparable to that of the United States, taking into account different conditions. The amendments also call upon the Secretary of Commerce to begin making identifications no later than January 4, 2012.

NMFS solicited information from the public on activities of fishing vessels from foreign nations engaged in shark catch beyond any national jurisdiction on March 24, 2011 (76 FR 16616), and indicated that it anticipated making the first identifications under this statute by January 4, 2012. However, upon further reflection and review of the statute, NMFS proposes to begin the process of making identifications by January 4, 2012, and publish the first identifications in the January 2013 Biennial Report to Congress, coincident with the next identification process under the IUU fishing and bycatch provisions of the Moratorium Protection Act. This approach is consistent with the statute and will treat all identified nations equally. If identifications were made in January 2012, it would have provided potentially-affected foreign nations only one year to become familiar with the new shark provisions before identification decisions were made and only one year to take the necessary actions to receive a positive certification. NMFS has already started collecting and analyzing information that could help the agency determine which nations may have vessels engaging in fishing activities or practices on the high seas that target or incidentally catch sharks.

The Secretary of Commerce will issue either a positive or negative certification to each nation that is identified in the biennial report to Congress. In the unlikely event that the Secretary of Commerce does not make a certification decision, alternative certification procedures may be applied. A positive certification indicates that the nation has taken the necessary actions pursuant to the Moratorium Protection Act. If an identified nation does not receive a positive certification, fishing vessels of such nation would be, to the extent consistent with international law, subject to the denial of entry into any place in the United States and to the navigable waters of the United States. Additionally, if an identified nation does not receive a positive certification, the Secretary of Commerce shall so notify the President of the United States. This notification may include recommendations to prohibit the importation of certain fish and fish products from the identified nation. The Secretary of Commerce will recommend to the President appropriate measures, including trade restrictive measures, to be taken against identified nations that have not received a positive certification, to address the fishing activities or practices for which such nations were identified in the biennial report. The Secretary of Commerce will make such recommendations on a case by case basis in accordance with international obligations, including the WTO Agreement. Upon this notification, the High Seas Driftnet Fisheries Enforcement Act (16 U.S.C. 1826a) authorizes the President to direct the Department of Treasury to prohibit the importation of certain fish and fish products from such nation.

If certain fish and fish products are prohibited from entering the United States, within six months after the imposition of the prohibition, the Secretary of Commerce shall determine whether the prohibition is insufficient to cause that nation to effectively address the shark catch described in the biennial report, or that nation has retaliated against the United States as a result of that prohibition. The Secretary of Commerce shall certify to the President each affirmative determination that an import prohibition is insufficient to cause a nation to effectively address such shark catch or that a nation has taken retaliatory action against the United States. This certification is deemed to be a certification under section 1978(a) of Title 22, which provides that the President may direct the Secretary of the Treasury to prohibit the bringing or the importation into the United States of any products from the offending country for any duration as the President determines appropriate and to the extent that such prohibition is sanctioned by the WTO.

The final rule establishing identification and certification procedures pursuant to the Moratorium Protection Act (published on January 12, 2011) also set forth a definition of IUU fishing for purposes of the Moratorium Protection Act (50 CFR 300.201). In response to public comments on the rule, NMFS committed to consider amending this regulatory definition in a subsequent rulemaking to make any necessary technical changes and incorporate suggestions made by the public. Through this action, NMFS also proposes to amend the definition of IUU fishing to include fishing activities that violate shark conservation measures required under an international fishery management agreement to which the United States is a party. Amendments to the Identification and Certification Procedures to Address Shark Conservation.

Pursuant to the Shark Conservation Act, NMFS proposes to amend the identification and certification procedures under the Moratorium Protection Act. This will provide for the identification of a foreign nation if fishing vessels of that nation are engaged, or have been engaged during the preceding calendar year, in fishing activities or practices in waters beyond any national jurisdiction that target or incidentally catch sharks, and the nation has not adopted a regulatory program for the conservation of sharks, including measures to prohibit removal of any of the fins of a shark (including the tail) and discard the carcass of the shark at sea, that is comparable in effectiveness to that of the United States, taking into account different conditions. When making identification decisions, NMFS will take into account whether the nation has adopted a regulatory program for the conservation and management of sharks in their domestic waters that could have bearing on shark conservation on the high seas. NMFS does not intend to identify nations, or issue a negative certification for identified nations, on the basis of a nation's failure to establish a comparable regulatory program in their domestic waters if the regulatory deficiency is not relevant to the nation's regulation of high seas shark catch. When determining whether a nation could potentially be identified for these activities through the process set forth in final regulations that were published on January 12, 2011 (76 FR 2011), NMFS will review, evaluate and verify relevant information obtained from credible sources by the agency demonstrating that foreign-flagged vessels engaged in fishing activities or practices in areas beyond any national jurisdiction that targeted or incidentally caught sharks during the relevant timeframe. This information could include data gathered by the U.S. Government as well as offered by other nations, international organizations (such as regional fisheries management organizations), institutions, bilateral or other arrangements, or non-governmental organizations.

Corroboration of information may be addressed through cooperation with governments, international organizations, non-governmental organizations, and through use of other credible information as appropriate. NMFS, acting through or in consultation with the State Department, may as appropriate initiate bilateral discussions with the nation whose vessels engaged in such fishing activities to:

• Communicate the provisions of the Moratorium Protection Act to the nation;

• Provide an opportunity for nations to provide additional information on the fishing activities of particular vessels; and

• Determine if the nation has adopted a regulatory program for the conservation of sharks for their vessels fishing on the high seas, including measures to prohibit the removal of any of the fins of a shark (including the tail) and discard the carcass of the shark at sea, that is comparable in effectiveness to that of the United States, taking into account different conditions.

When making its identification decisions, NMFS will take into account relevant matters, including, but not limited to, the history, nature, circumstances, and gravity of the fishing activities that targeted or incidentally caught sharks in areas beyond any national jurisdiction. NMFS will also take into account any actions taken by the nation that are relevant to the conservation and sustainable management of sharks in areas beyond any national jurisdiction, including:

• If the nation has adopted a regulatory program for the conservation of sharks;

• Participation in cooperative research activities designed to mitigate the impacts of fishing activities that result in the incidental catch of sharks;

• Programs for data collection and sharing, including programs to assess the abundance and status of sharks and observer programs; and

• The adoption and use of strategies, techniques, and equipment for the reduction and mitigation of shark bycatch, if vessels of the nation have shark bycatch.

If any relevant international organization or regional fishery management organization (RFMO) has adopted measures for the conservation and sustainable management of sharks, NMFS will consider whether the nation is a party or cooperating non-party to the organization, and/or whether the nation has implemented such measures.

By January 4, 2012, NMFS began the process of making identifications of nations whose fishing vessels engaged in fishing activities or practices on the high seas that target or incidentally catch sharks and have not adopted a regulatory program for the conservation of sharks on the high seas, including measures to prohibit removal of any of the fins of the shark (including the tail) and discard the carcass of the shark at sea, that is comparable in effectiveness to that of the United States, taking into account different conditions. Identifications will be published in the biennial report to Congress, as required by the Moratorium Protection Act. The next biennial report is due to Congress on January 12, 2013.

Nations will be notified of their identification under the Moratorium Protection Act, and NMFS, acting through or in consultation with the State Department, will initiate consultations to encourage identified nations to take the necessary actions pursuant to the Moratorium Protection Act.

Although the Secretary of Commerce is authorized not to issue a certification decision to an identified nation under the Moratorium Protection Act, the Secretary of Commerce will issue either a positive or negative certification to each identified nation, which will be published in the subsequent biennial report to Congress, for all nations that are identified.

In determining whether to issue a positive or negative certification for each identified nation, the Secretary of Commerce, in consultation with the Secretary of State, will take into account all relevant facts and circumstances, including, but not limited to, the record of consultations with such nation, results of these consultations, and actions taken by the nation and any applicable RFMO to address the fishing activities of concern described in the biennial report.

To receive a positive certification, any nation that is identified as having fishing vessels engaged in fishing activities or practices on the high seas that target or incidentally catch sharks will need to provide documentary evidence of the adoption of a regulatory program for the conservation of sharks that is comparable in effectiveness to that of the United States, taking into account different conditions, including conditions that could bear on the feasibility and effectiveness of these measures. In order to receive a positive certification, such nation will also need to establish a management plan that assists in the collection of species-specific data.

When evaluating whether an identified nation whose pelagic longline vessels engaged in fishing activities or practices on the high seas that target or incidentally catch sharks has adopted a regulatory program for the conservation of sharks that is comparable in effectiveness to that of the United States, the proposed rule would not require the regulatory program to include the mandatory use of circle hooks, as specified for nations identified under Section 610 of the Moratorium Protection Act, since there is scientific uncertainty about the impact of circle hook use on shark bycatch and the United States does not require the use of circle hooks in its fisheries to mitigate shark bycatch.

NMFS will notify nations prior to a formal certification determination, and will provide such nations an opportunity to support and/or refute preliminary certification determinations, and communicate actions taken to adopt a regulatory program for the conservation of sharks that is comparable in effectiveness to that of the United States, taking into account different conditions, and establish a management plan that assists in the collection of species-specific data. The Secretary of Commerce shall consider any relevant information received during consultations when making its formal certification determination.

NMFS proposes to amend the definition of IUU fishing, consistent with the purposes of the Moratorium Protection Act, in order to more comprehensively address IUU fishing, and thus more effectively address this serious problem that threatens the sustainable management of the world's fisheries.

First, NMFS proposes to amend the IUU fishing definition to clarify its application to fishing activities conducted by fishing vessels of both party and non-party nations to international fishery management agreements to which the United States is a party. The first paragraph of the current IUU fishing definition addresses fishing activities that violate conservation and management measures of an RFMO to which the United States is a party. NMFS proposes to amend this paragraph to clarify that it is intended to apply to nations that are a party to the relevant international fishery agreement. NMFS also proposes to add a new paragraph clarifying that, in the case of non-parties to an international fishery management agreement to which the United States is a party, fishing activities that would undermine the conservation of the resources managed under that agreement can be IUU fishing.

Second, pursuant to the Shark Conservation Act, NMFS proposes to amend the IUU fishing definition to explicitly include fishing activities in violation of shark conservation measures that are required by an RFMO to which the United States is a party.

Third, NMFS proposes to clarify that the IUU fishing definition applies when a nation fails to report or fails to provide accurate or complete data and information regarding its vessels' fishing activities as required by an RFMO to which the United States is a party. By adding an explicit reference to reporting, NMFS intends to highlight the importance of compliance with RFMO data collection requirements to support effective fisheries management.

Fourth, NMFS proposes to amend the IUU fishing definition to include fishing activities conducted by foreign flagged vessels in waters under U.S. jurisdiction without authorization of the United States. Such activities undermine the ability of the United States to sustainably manage its fisheries.

In determining whether to make an IUU fishing identification, NMFS will take into account all relevant information, in accordance with § 300.202(a)(2). In addition, when determining whether to identify a foreign nation for having vessels engaged in fishing activities within the U.S. exclusive economic zone (EEZ) without authorization of the United States, NMFS will consider any actions taken by the United States, the flag State and, where relevant, the international fishery management organization, to address those activities, as well as the effectiveness of such actions.

In addition to the regulatory changes identified above, NMFS is reconsidering the manner in which it has applied Section 609 of the Moratorium Protection Act and its implementing regulations. To date, NMFS has primarily applied this Act and implementing regulations to identify a nation when the nation's vessels were engaged in illegal, unregulated, or unreported fishing activity that was directly attributable to specific vessel conduct. In future identifications, NMFS intends to identify nations based on fishing activity that was illegal, unreported, or unregulated because of either the vessels' conduct or the nation's actions or inactions in managing its fisheries.

After two cycles of identification, NMFS has determined that these provisions could be applied more broadly. In order to more comprehensively address IUU fishing, we must consider not only the prohibited actions of fishing vessels but also non-compliance in the form of action or inaction at the national level that leads to IUU fishing. To further this goal, NMFS is proposing to identify a nation based on the nation's actions or inactions that lead to fishing by vessels registered under their flag that is not in accordance with RFMO conservation and management measures. For example, under this approach, NMFS could identify a nation when the nation has failed to implement measures that are required by an RFMO to which the United States is a party, and as a result the fishing vessels of that nation operated in a manner inconsistent with the relevant RFMO conservation and management measures.

This approach is consistent with the plain language of the statutory guidelines provided in Section 609(e)(3)(A) of the Moratorium Protection Act for the IUU fishing definition. These statutory guidelines specifically mention certain RFMO conservation and management measures, such as catch limits or quotas, that must be implemented by nations that are parties to the RFMO and cannot necessarily be attributed to specific fishing vessels. For example, RFMOs can establish quotas for their member nations. Each nation bears the responsibility for implementing and adhering to the quota it received. Individual fishing vessels, therefore, cannot be found in violation of the RFMO's quota, but action or inaction by the flag nation could result in fishing activity in violation of the quota. In addition to specific situations mentioned in the minimum statutory guidelines for the IUU fishing definition, there are other circumstances in which fishing activities might violate RFMO measures because of a nation's failure to govern its own fishing vessels or carry out its own responsibilities. For example, RFMOs require parties to implement data reporting requirements. In most cases, the nations, and not individual vessels, compile and report the requisite information to comply with RFMO conservation and management measures. Because many measures are inherently a nation's responsibility, Congress evidently intended NMFS to be able to identify a nation based on its failure to fulfill the requirements of the relevant RFMO and the operations of the nation's fisheries in light of this failure.

Under the proposed approach, a nation could be identified for fishing activities that were illegal, unregulated, or unreported because of national action or inaction, including, consistent with the examples discussed above, fishing activities that resulted in the nation exceeding a harvest quota granted by the relevant RFMO because the nation failed to implement measures to prevent such overharvest, and fishing activities that were not reported because the nation failed to carry out its responsibilities for reporting to ensure collection of such information.

This proposed rule is published under the authority of the Moratorium Protection Act, 16 U.S.C. 1826d-1826k, as amended by the Shark Conservation Act (Pub. L. 111-348).

This proposed rulemaking has been determined to be significant for the purposes of Executive Order 12866.

Pursuant to section 605 of the Regulatory Flexibility Act, the Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. In this rulemaking, NMFS proposes to amend the identification and certification procedures under the Moratorium Protection Act to prevent shark finning and to promote the conservation and sustainable harvest of sharks by fishing vessels of foreign nations, as required under the Shark Conservation Act (Pub. L. 111-348).

A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. Briefly, under the proposed regulations, NMFS would identify a foreign nation in a biennial report to Congress if fishing vessels of that nation have been engaged during the preceding calendar year in fishing activities or practices in waters beyond any national jurisdiction that target or incidentally catch sharks and the nation has not adopted a regulatory program for the conservation of sharks, including measures to prohibit removal of any of the fins of a shark (including the tail) and discarding of the carcass of the shark at sea, that is comparable to that of the United States, taking into account different conditions. The Secretary of Commerce will issue either a positive or negative certification to each nation that is identified in the biennial report to Congress. A positive certification would demonstrate that the nation has taken the necessary corrective action to address the fishing activities of concern described in the biennial report to Congress. Nations identified for having vessels engaged in shark catch on the high seas that do not receive a positive certification from the Secretary of Commerce may be subject to measures imposed by the Secretary of the Treasury under the High Seas Driftnet Fisheries Enforcement Act (16 U.S.C. 1826a). Such measures include the denial of port privileges of fishing vessels of those nations, and, as directed by the President, prohibition on the importation into the United States of certain fish and fish products caught by the vessels engaged in the relevant activity for which the nations were identified, or other measures.

To receive a positive certification, any nation that is identified as having fishing vessels engaged in fishing activities or practices on the high seas that target or incidentally catch sharks will need to provide documentary evidence of the adoption of a regulatory program for the conservation of sharks that is comparable in effectiveness to that of the United States, taking into account different conditions, including conditions that could bear on the feasibility and effectiveness of measures. Prior to being issued a positive certification, such nation will also need to establish a management plan that assists in the collection of species-specific data in order to receive a positive certification.

Because the proposed regulations are purely procedural in nature, and only set out how NMFS is to make decisions regarding certifications for nations that have been identified in the biennial report to Congress, there are no direct economic impacts on small or large entities. Therefore, the proposed regulations will not have a significant economic impact on a substantial number of small entities and do not need to be analyzed under the Regulatory Flexibility Act. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This proposed rule contains collection-of-information requirements for §§ 300.206(b)(2), 300.207(c), and 300.208(c) subject to review and approval by OMB under the Paperwork Reduction Act (PRA). The collection-of-information requirements have been provided to OMB.

For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows: