Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the Federal Register on May 1, 2012 (77 FR 25647). That NPRM proposed to require repetitive lubrication of the MLG pivot joints; repetitive detailed inspections of the outer diameter chrome on the center axles of the MLG for chicken-wire cracks, corrosion, and chrome plate distress; repetitive magnetic particle inspections of the outer diameter chrome on the center axles of the MLG for cracks; and related investigative and corrective actions if necessary.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (77 FR 24647, May 1, 2012), and the FAA's response to each comment.

United Airlines agrees with the intent of the NPRM (77 FR 24647, May 1, 2012).

FedEx and Air France requested that we revise the compliance time for the inspection specified in paragraph (g) of the NPRM (77 FR 25647, May 1, 2012) to coincide with the time between overhaul (TBO) of the MLG for their respective fleets. The applicable compliance time specified in the NPRM for the FedEx fleet would be 3,000 days; the TBO for the FedEx fleet is 3,650 days. The applicable compliance time specified in the NPRM for the Air France fleet would be 3,750 days; the TBO for the Air France fleet is 4,015 days. FedEx noted that, of the 28 cracked axles found during overhaul, none was fractured.

We disagree to revise the compliance time. In developing an appropriate compliance time for this AD, we considered not only the safety implications, but the manufacturer's recommendations and the practical aspect of accomplishing the required actions within an interval of time that corresponds to typical scheduled maintenance for affected operators. Under the provisions of paragraph (l) of this final rule, however, we might consider requests for adjustments to the compliance time if data is submitted to substantiate that such an adjustment would provide an acceptable level of safety. We have not changed the final rule regarding this issue.

Boeing, FedEx, and All Nippon Airways requested that we revise paragraph (i) of the NPRM (77 FR 25647, May 1, 2012) to include an additional exception to the service information. The commenters requested that we allow the use of MIL-PRF-32014 grease as an alternative to the Royco 11MS grease for the lubrications specified in paragraph (g) of the NPRM. Boeing Alert Service Bulletin 777-32-0082, dated December 9, 2010 (referenced in the NPRM as the appropriate source of service information for this lubrication), replaces the Royco 11MS grease with MIL-PRF-32014 grease for lubricating and installing the MLG pivot joint components.

Boeing asserted that MIL-PRF-32014 grease provides the same lubricating properties as Royco 11MS grease. Boeing and FedEx noted that use of MIL-PRF-32014 grease across the fleet will avoid intermixing grease types and prevent the need to track which grease has been applied on each airplane. FedEx reported it has already standardized to MIL-PRF-32014 grease to ensure that there is no intermixing of greases. Boeing reported that Boeing Alert Service Bulletin 777-32A0082, dated December 9, 2010, will be revised to allow use of MIL-PRF-32014 grease as an optional grease type, but this revision will not be available when the AD is issued.

We agree with the request. Both greases have the same lubricating properties and will work with the original and new bushing materials. We have added new paragraph (i)(2) in this final rule (and redesignated paragraph (i) of the NPRM (77 FR 25647, May 1, 2012) as paragraph (i)(1) of this final rule) to allow the use of either MIL-PRF-32014 or Royco 11MS grease for the lubrications required by paragraph (g) of this AD.

FedEx, Air France, United Airlines, and All Nippon Airways requested that we revise paragraph (j) of the NPRM (77 FR 25647, May 1, 2012) to provide terminating action for the repetitive inspections specified in paragraph (g) of the NPRM. FedEx stated that airplanes after incorporation of Boeing Service Bulletin 777-32-0085, dated April 14, 2011, have the same configuration as new production airplanes. Air France stated that incorporation of Boeing Service Bulletin 777-32-0085, dated April 14, 2011, and the incorporation of Item 32-CMR-01 of Section 9, Airworthiness Limitations of the Boeing 777 Maintenance Planning Document (MPD) into the airplane maintenance program terminates the repetitive inspections specified in paragraph (g) of the NPRM by modifying the MLG and including the repetitive lubrication in the airplane maintenance program.

We agree that accomplishment of the actions specified in Boeing Service Bulletin 777-32-0085, dated April 14, 2011, involves a final inspection, modification to the MLG, and modification of the airplane maintenance program to terminate the repetitive inspections of paragraph (g) of this AD. Paragraph (j)(2) of this AD provides the optional terminating action. It is, therefore, unnecessary to revise that paragraph. We have made no changes to the AD in this regard.

Air France noted that the optional terminating action specified in paragraph (j)(2) of the NPRM (77 FR 25647, May 1, 2012) does not specify the inner cylinder assembly upgrade with bushing replacement, as specified in Part 2, Option 2, of the Accomplishment Instructions of Boeing Service Bulletin 777-32-0085, dated April 14, 2011.

We agree to revise the AD. Instead of identifying every action, however, we have revised paragraph (j)(2) in this final rule to require all applicable actions specified in the Accomplishment Instructions of Boeing Service Bulletin 777-32-0085, dated April 14, 2011.

Air France expressed concern regarding the cost of the inspection and modification program, with no industry support from Boeing. Air France noted that an unsafe condition due to normal operation would be considered a major design defect. Air France requested that Boeing propose industry support to cover the maintenance burden of the design defect.

Air France did not request any change to the AD. Further, we do not control warranty coverage for affected individuals. We have, therefore, not changed the AD regarding the estimated costs.

Air France reported that it found the service information instructions to be complex, with a high risk of grounding airplanes due to on-condition findings and a lack of Boeing support regarding the inner cylinder assembly. Air France requested that Boeing add service extension limits in case of on-condition findings.

Air France did not specifically request a change to the AD. We cannot allow continued operation if cracking is detected, due to the safety implications and consequences of such cracking. We have not changed the final rule regarding this issue.

Boeing requested that we revise the NPRM (77 FR 25647, May 1, 2012) to clarify the related investigative and corrective actions for the inner cylinder. Boeing noted minor differences between the wording of the NPRM and the wording of Boeing Alert Service Bulletin 777-32A0082, dated December 9, 2010. Boeing requested that we revise the NPRM to more closely align with the Accomplishment Instructions of that service bulletin.

We partially agree. We agree that Boeing's proposed changes are consistent with the procedures provided in the service information specified in the preamble of the NPRM (77 FR 24647, May 1, 2012). But this level of detail is not provided in the regulatory language of this AD. Instead, the AD refers to the service information for the required procedures. It is not necessary to revise the final rule to account for this request.

Boeing noted an incorrect reference to service information specified in the NPRM (77 FR 25647, May 1, 2012). Where the NPRM referred to “Boeing Service Bulletin 777-32A0085,” the correct service bulletin number is “777-32-0085.” We have revised paragraph (j)(2) of this AD accordingly.

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

• Αre consistent with the intent that was proposed in the NPRM (77 FR 25647, May 1, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 25647, May 1, 2012).

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

We estimate that this AD affects 160 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary repairs or replacements that would be required based on the results of the inspections. We have no way of determining the number of aircraft that might need these repairs or replacements.

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

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

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

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

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

(3) Will not affect intrastate aviation in Alaska, and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the Federal Register on March 2, 2012 (77 FR 12755). That NPRM proposed to require dimensional inspections of 3rd stage vanes and the rear turbine case. That NPRM also proposed to require inspection of 4th stage vanes at the next LPT overhaul and removal of vanes with non-conforming airfoil fillet radii and vanes with more than one strip and recoat repair. That NPRM also proposed to require disassembly and reassembly of the 2nd stage HPT rotor and 3rd stage LPT rotor at the next HPT and LPT overhauls.

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

Two commenters, Boeing and FedEx, agreed with the intent of the proposed AD.

One commenter, China Cargo Airlines, requested that we change the inspection compliance time for the LPT 4th stage vanes from “next LPT overhaul” to “next engine overhaul.” The commenter stated that LPT overhauls are typically performed every other shop visit, which could be in six-to-eight years. The commenter thought that the risk of having a 4th stage vane failure during that time was too high.

We do not agree. We determined that performing the inspections at the next LPT overhaul after the effective date of the AD provides an acceptable level of safety, and that we do not need to reduce the interval. We did not change the AD.

FedEx requested that a statement be included authorizing credit for prior compliance as they have already been performing the requirements of the proposed AD.

We do not agree. Paragraph (e) of the proposed AD already allows credit for prior compliance. That paragraph states to comply with the AD within the compliance times specified, unless already done. We did not change the AD.

One commenter, Martinair Holland, requested that we add a reference to Pratt & Whitney Special Instruction No. 17F-09 as an alternate method of compliance (AMOC) for paragraph (e)(1)(iii). The commenter stated that they have been checking the 3rd stage vanes for adequate engagement using that Special Instruction.

We do not agree. The AD requires dimensional inspections that are not included in Special Instruction No. 17F-09. Also, we do not include AMOCs in the requirements of an AD. You may, however, seek an AMOC using the procedures specified in the AD. We did not add that Special Instruction reference to the AD.

Martinair Holland, United Airlines, and Onur Air, requested that we add references to Pratt & Whitney Service Bulletins (SBs) PW4ENG 72-798, PW4ENG 72-804, and PW4G-100-72-221, as alternate methods of compliance to paragraph (e)(1)(v). The commenters stated that they have been inspecting the LPT 4th stage vanes using these SBs.

We do not agree. Paragraph (e) of the proposed AD states to comply with the AD within the compliance times specified, unless already done. If you have already done the proposed actions, then no further action is required to comply with paragraph (e)(1)(v). Also, as noted above, we do not include AMOCs in the requirements of an AD. We did not change the AD.

Pratt & Whitney requested that we include the P/Ns of the LPT 4th stage vanes that are subject to the one-time strip and recoat requirement. The commenter stated that it is possible that future designs of LPT 4th stage vanes would not be restricted to a single strip and recoat requirement.

We agree. We listed the P/Ns of the affected LPT 4th stage vanes in the AD.

United Airlines requested that we define the word “guidance” which we used in paragraph (g) of the proposed AD, or, that we revise the wording to specifically detail the inspection/build procedure to be used. The commenter states that using the term “guidance” does not denote a specific requirement and only suggests a general direction to be followed.

We agree. Use of the word “guidance” in this AD may have caused confusion. We deleted the “guidance” paragraphs listed under Related Information from the AD.

Pratt & Whitney and United Parcel Service Co. (UPS) requested that we add the words “or later” after the service information date references in paragraph (g) of the proposed AD. They also requested that we clarify that the referenced service information could be updated, and compliance to that updated service information would be acceptable. One of the commenters was concerned that service information listed as guidance would be controlled in the same way as service information that is incorporated by reference in the AD.

We do not agree. We do not know how documents will be revised in the future. This AD, however, was revised to remove references to related service information, and therefore the comment no longer applies. We did not change the AD.

United Airlines and UPS requested that we remove the term “overhaul,” such as “LPT overhaul” and “HPT overhaul” from the proposed AD compliance, as the term “overhaul” is not industry standard and therefore subjective. The commenters suggested a few alternatives to use instead of the term “overhaul.”

We partially agree. We do not agree that the term “overhaul” should be removed, but we do agree that it should be defined. We added a definition paragraph which states that, for the purpose of this AD, an overhaul is when all disks in the rotor are removed from the engine and the blades are removed.

UPS requested that we clarify that the service information listed under Related Information are approved methods of compliance to the proposed AD. They further stated that, as-written, it is not clear that they are approved methods of compliance.

We agree that the AD should be clarified. We revised the AD by removing references to related service information.

United Airlines requested that we duplicate the strip and recoat requirements and make them part of Inspection/Check-01 or Inspection/Check-03 of the PW4000 Engine Cleaning Inspection and Repair (CIR) Manual. The commenter stated that the strip and recoat limits are currently located in repair-14 of the PW4000 CIR Manual, but repair-14 is not always required to return a vane cluster to service. The commenter stated that the strip and recoat requirements need to be part of the normal inspection process.

We do not agree. The AD mandates that the inspection be performed once, at the next LPT overhaul. That inspection will purge the fleet of LPT 4th stage vanes that have had more than one strip and recoat repair. After that inspection, LPT 4th stage vanes are not allowed to have more than one strip and recoat repair, as specified in the installation prohibition paragraph (f). Revising the engine manuals to relocate the inspection requirements is unnecessary. We did not change the AD.

United Airlines stated that there is no way to identify vanes with an unknown number of strip and recoat repairs. The commenter stated that if there were no markings on the vane, it would indicate that no strip and recoat repairs were performed. This could lead to scrapping vanes that could otherwise be repaired and returned to service.

We agree. We changed the AD to eliminate the reference to LPT 4th stage vanes with an unknown number of strip and recoat repairs.

United Airlines requested that in proposed AD paragraph (e)(1)(iv) we make the CIR inspections more specific for the LPT case dimensions. The commenter stated that there are different ways to perform the measurements and it is not clear whether the dimension to measure is based on an average or an individual diametric dimension.

We do not agree. A specific measurement technique is not defined because multiple measurement techniques exist that are acceptable. The only diametric dimensional inspection required by the AD is index 24, which would be acceptable to measure based on an average dimension. We did not change the AD.

United Airlines requested that in proposed AD paragraphs (e)(1)(iii) and (e)(1)(iv), we change “ensure adequate engagement” to “dimensionally inspect the applicable LPT case slot serviceable dimensions and 3rd stage vane serviceable dimensions per the appropriate CIR.” The commenter also requested that we list the specific dimensions to inspect by index number. The commenter stated that no mechanic can deduce what an adequate engagement is because it is not specific enough.

We agree. We changed paragraph (e)(1)(iii) to “dimensionally examine index 13 through index 34 of the LPT 3rd stage vane cluster assembly.” We also changed paragraph (e)(1)(iv) to “dimensionally examine index 23 and index 24 of the vane engagement slots on the rear turbine case, where the 3rd stage vane is installed.” We also listed the specific dimensions to inspect by index number, and included the supporting figures in this AD.

United Airlines requested that we eliminate paragraphs (e)(1)(ii) through (e)(1)(iv) and (e)(2). The commenter stated that these paragraphs are related to procedures that are in the engine manual that operators are already performing. If they are left in the AD, they will add a significant burden in the amount of time and paperwork required to manage and verify compliance to the AD.

We do not agree. The actions in the paragraphs the commenter wants eliminated from the AD represent changes to the manuals that were specifically incorporated to address 3rd and 4th stage vane failures. Although air carriers operating under 14 Code of Federal Regulations (CFR) Part 121 are likely using the most current versions of the engine manuals, not all operators, for example, part 91 operators, may be required to incorporate the latest versions of the engine manuals. Therefore, we must maintain these requirements in the AD to ensure that all operators comply to resolve the unsafe condition. We did not change the AD.

In reviewing the cost of compliance estimate made in the NPRM (77 FR 12755, March 2, 2012), we determined that we were unable to substantiate our prorated cost estimate for limiting the number of strip and recoat repairs since we do not know how many vanes are operating with more than one strip and recoat repair. We, therefore, removed the estimate of the useful part life expectancy and only included the replacement parts cost. The total cost estimate changed from $32,147,170 to $9,214,170.

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

• Are consistent with the intent that was proposed in the NPRM (77 FR 12755, March 2, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 12755, March 2, 2012).

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

We estimate that this AD affects 807 engines installed on airplanes of U.S. registry. We estimate that it will take 2 work-hours per engine to perform the LPT 3rd stage vane cluster assembly and rear turbine case inspections. The average labor rate is $85 per work-hour. We expect that about 1,870 LPT 4th stage vane cluster assemblies will be found with the non-conforming casting identification. Replacement parts cost about $4,854. Based on these figures, we estimate the cost of the AD on U.S. operators to be $9,214,170.

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

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

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

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

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

(3) Will not affect intrastate aviation in Alaska, and

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the Federal Register on December 30, 2011 (76 FR 82207). That NPRM proposed to require incorporating design changes to improve the reliability of the cabin altitude warning system by requiring installation of a redundant switch of the cabin altitude pressure, replacing the AWM with a new or reworked AWM, changing certain wire bundles, and connecting certain previously capped and stowed wires, as necessary. For certain airplanes, that NPRM also proposed to require modifying the instrument panels, installing light assemblies, modifying the wire bundles, and installing a new circuit breaker, as necessary.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (76 FR 82207, December 30, 2011) and the FAA's response to each comment.

Air Line Pilot's Association International supported the intent and the language of the NPRM (76 FR 82207, December 30, 2011). Europe Airpost stated it has no objection to the NPRM as proposed for Model 737-700 airplanes. American Airlines (AAL) stated it has no objections to the NPRM as proposed and finds the proposed compliance time to be acceptable.

Delta (DAL), AAL, and The Boeing Company requested that the proposed AD (76 FR 82207, December 30, 2011) incorporate “Boeing Special Attention Service Bulletin 737-21-1165, Revision 2, dated April 30, 2012,” instead of Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010. Boeing stated that Boeing Special Attention Service Bulletin 737-21-1165, Revision 2, dated April 30, 2012, incorporates changes to fix errors in the airplane maintenance manual, connection pin contacts, one splice, and one wire that had been discovered by an operator attempting to incorporate the service information. Boeing stated that if Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010, is required, the operators affected by the errors in that service bulletin will require alternative methods of compliance (AMOCs) in order to comply with the proposed AD.

In addition, Boeing and US Airways requested that the proposed AD (76 FR 82207, December 30, 2011) incorporate Boeing Special Attention Service Bulletin 737-21-1164, Revision 1, dated May 17, 2012. Boeing stated that this revised service information incorporates changes from an engineering validation that affects all identified airplane groups and revises the engineering for airplanes with cold-bonded skins. Boeing stated that Boeing Special Attention Service Bulletin 737-21-1164, dated February 10, 2011, cannot be incorporated as written due to erroneous installation steps for the pressure switch location and erroneous operational test instructions. US Airways noted that errors with conflicting steps in Boeing Special Attention Service Bulletin 737-21-1164, dated February 10, 2011, involve circuit breaker operation.

We agree with the commenters' requests to reference the latest service information for the reasons provided by the commenters. We have revised this AD by referencing Boeing Special Attention Service Bulletin 737-21-1164, Revision 1, dated May 17, 2012; and Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010, as revised by Boeing Special Attention Service Bulletin 737-21-1165, Revision 2, dated April 30, 2012; throughout the AD. We have also given credit for actions done before the effective date of this AD in accordance with Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010.

Boeing requested that we either delete or clarify references in the preamble and paragraph (i) (“Credit for Actions Accomplished in Accordance with Previous Service Information”) of the NPRM (76 FR 82207, December 30, 2011) to Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010, and Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011; as well as the supporting BAE Systems service information. Boeing stated a concern that the references to all of this service information will cause confusion regarding the concurrent requirements and compliance times.

Boeing also stated that AD 2011-03-14, Amendment 39-16598 (76 FR 6529, February 7, 2011), already mandates incorporation of Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010, and also establishes the compliance time. Boeing added that another existing NPRM, Docket No. FAA-2011-0258 (76 FR 16579, March 24, 2011), proposes to mandate Boeing Alert Service Bulletin 737-31A1332, Revision 1, dated June 24, 2010, and it also establishes the compliance times.

Boeing stated its concern that the proposed AD (76 FR 82207, December 30, 2011) might inadvertently require operators to incorporate Boeing Special Attention Service Bulletin 737-21-1164, Revision 1, dated May 17, 2012; and Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010; at the same time—instead of in the correct order.

We agree with Boeing's request to clarify or delete certain service information in this final rule to avoid confusion.

Notes 1 and 2 of the NPRM (76 FR 82207, December 30, 2011) referenced the supporting BAE Systems service information; therefore, we have removed those notes from this final rule to avoid confusion.

It should be noted that since the issuance of the NPRM (76 FR 82207, December 30, 2011), we have reviewed Boeing Alert Service Bulletin 737-31A1332, Revision 3, dated March 28, 2012, which clarifies certain actions and figures. We have revised paragraph (h) of this AD to reference this latest revision of the service information.

We have also revised paragraph (i) of the NPRM (76 FR 82207, December 30, 2011), which gave credit for Boeing Alert Service Bulletin 737-31A1332, Revision 1, dated June 24, 2010. Paragraph (i)(1) of this final rule provides credit for Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010. We have added paragraph (i)(2) to this final rule to give credit for Boeing Alert Service Bulletin 737-31A1332, Revision 1, dated June 24, 2010; however, such credit only applies to Group 1 airplanes identified in that service information, except for Groups 24, 25, and 27 through 33 airplanes (as identified in Boeing Alert Service Bulletin 737-31A1332, Revision 3, dated March 28, 2012). Paragraphs (i)(3) and (i)(4) of this final rule to provide credit for Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011, but only for the airplanes identified in those paragraphs.

We provide the following clarifications for references in this final rule to Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010; and Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011; as applicable.

If an operator decides to comply with the actions in Boeing Special Attention Service Bulletin 737-21-1164, Revision 1, dated May 17, 2012; and Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010, as revised by Boeing Special Attention Service Bulletin 737-21-1165, Revision 2, dated April 30, 2012; within the 72-month compliance time specified in this AD, then prior to or concurrently with those actions, the operator also must accomplish the concurrent requirements in Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010, or Boeing Alert Service Bulletin 737-31A1332, Revision 3, dated March 28, 2012, as applicable.

However, we note that AD 2011-03-14, Amendment 39-16598 (76 FR 6529, February 7, 2011), requires accomplishment of Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010, within 36 months after the effective date of that AD. In addition, NPRM Docket No. FAA-2011-0258 (76 FR 16579, March 24, 2011) also specifies 36 months as the compliance time for accomplishment of Boeing Alert Service Bulletin 737-31A1332, Revision 1, dated June 24, 2010. Therefore, if an operator waits until the end of the 72-month compliance time specified in paragraph (g) this AD to accomplish the concurrent service information specified in this AD—i.e., Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010; and Boeing Alert Service Bulletin 737-31A1332, Revision 3, dated March 28, 2012—then that operator would be out of compliance with the other AD actions. Therefore, the order of these AD actions is acceptable.

Boeing requested that paragraph (e) of the NPRM (76 FR 82207, December 30, 2011) be revised. Boeing suggested that the paragraph state: “This AD was prompted by the report of a flight crew not receiving an aural warning during a lack of cabin pressurization event. The failure of the altitude pressure switch prevented the aural warning from sounding when the cabin altitude exceeded 10,000 feet. We are issuing this AD to improve reliability of the Cabin Altitude Warning to flight crews. Loss of the Cabin Altitude Warning may delay flight crew recognition of a lack of cabin pressurization, which could result in incapacitation of the flightcrew due to hypoxia (a lack of oxygen in the body), and consequent loss of control of the airplane.”

Boeing stated that the pressure switch at issue is only used in the cabin altitude warning system and is not used for pressurization control. Boeing stated that the increased reliability of the cabin altitude warning may prevent delays in the flightcrew's recognition of a lack of cabin pressure event, but will not affect the flightcrew's ability to recognize the warning intent or properly react because the method of annunciation and associated flightcrew procedures are unchanged. Boeing stated that AD 2011-03-14, Amendment 39-16598 (76 FR 6529, February 7, 2011), and NPRM Docket No. FAA-2011-0258 (76 FR 16579, March 24, 2011) address the failure of a flightcrew to recognize and react to a valid cabin altitude warning.

We agree with Boeing's request. We agree that the requested revision clarifies that failure of the pressure switch was not the root cause of the lack of cabin pressurization, but was the root cause of the failure of the aural warning. We have changed the Summary and paragraph (e) of this final rule accordingly, with certain editorial changes.

United Airlines (UAL) requested that the effective date of the final rule after the NPRM (76 FR 82207, December 30, 2011) match the effective date of the final rule after NPRM for Docket No. FAA-2011-0258 (76 FR 16579, March 24, 2011). UAL pointed out that Boeing Special Attention Service Bulletin 737-21-1165, Revision 2, dated April 30, 2012; and Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011; have been issued. UAL stated that the effective date of this final rule will require installation of the redundant pressure switch (which was proposed in the NPRM (76 FR 82207, December 30, 2011)), and should not precede the effective date of the final rule for NPRM Docket No. FAA-2011-0258, which currently proposes to require the installation of annunciators. UAL stated that matching the compliance times for the two final rules will allow operators to obtain parts and schedule the two modifications concurrently, which is much more effective than doing the two tasks at separate times, since the work is required in the same areas for both modifications.

We disagree with the commenter's request to harmonize the compliance times. While we note that the safety issues identified in this final rule and NPRM Docket No. FAA-2011-0258 (76 FR 16579, March 24, 2011) are related, each AD action addresses separate safety issues and has specific compliance times based on our risk assessments. Operators can always comply with an AD in advance of the compliance time. We have not changed this AD in this regard.

Boeing requested clarification of incorporation costs reflected in the NPRM as those costs relate to Boeing Alert Service Bulletin 737-31A1325, dated January 11, 2010; Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011; and the supporting BAE service information.

DAL requested that the work-hours for Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011, to modify instrument panels, install light assemblies, modify wire bundles, and install a new circuit breaker, be changed from 84 to approximately 95. DAL stated that it has noted a discrepancy in the work-hours for the actions specified in the service information, excluding time estimates for opening and closing.

AAL requested that we revise the estimated work-hours for accomplishing the actions in the NPRM (76 FR 82207, December 30, 2011). AAL suggested that the work-hours specified in Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010, be revised from 31 to approximately 95 work-hours for accomplishing the installation of the redundant cabin altitude pressure switch, removal and installation of the AWM, and wiring changes. AAL stated that it has validated its estimates through implementation on several airplanes. DAL requested the work-hours for the same action be adjusted to approximately 53.

UAL requested that the combined work-hours for both actions (we infer to this as installation and modification) be changed from 115 to 200 work-hours. UAL stated that it has done surveys of airplanes to determine how to gain access to affected areas, and it has determined what additional testing will be required due to disturbed systems.

Europe Airpost, DAL, US Airways, and UAL requested that we revise the cost of parts in the NPRM (76 FR 82207, December 30, 2011). Europe Airpost specifically stated that an additional cost should be included for operators needing to procure a new AWM ($36,456 based on the Boeing service information), which is not negligible for small airlines. UAL stated that the price estimates specified in the service information and the NPRM only include wire kit costs and do not include the costs for modifying or replacing parts. US Airways indicated that the cost for reworking the AWM would be $4,136, and the cost for replacement of the AWM would be $33,576 (each).

We agree with the commenters' request to revise the work-hours and the cost of parts in this AD. We have revised the cost for the installation, replacement, and wiring changes to include the 54 work-hours in Boeing Special Attention Service Bulletin 737-21-1165, Revision 1, dated July 16, 2010, as revised by Boeing Special Attention Service Bulletin 737-21-1165, Revision 2, dated April 30, 2012, and the 8 hours in the concurrent BAE service information, a total of up to 62 work-hours. We have revised the cost of parts of the AWM to specify $33,576. For the modification and other installations, we have included the 8 work-hours in the concurrent BAE service information, a total of up to 92 work-hours. We have revised the “Cost of Compliance” section of this AD accordingly.

UAL requested that we revise and re-open the comment period for a related NPRM, Docket No. FAA-2011-0258 (76 FR 16579, March 24, 2011). UAL stated that the related NPRM is only applicable to airplanes in Groups 1 through 7 of Boeing Alert Service Bulletin 737-31A1332, Revision 1, dated June 24, 2010. UAL stated that it does not have any airplanes within these groups and, therefore, did not comment on that related NPRM. However, UAL stated that in paragraph (h) of the NPRM (76 FR 82207, December 30, 2011), the concurrent requirements identified in Boeing Alert Service Bulletin 737-31A1332, Revision 2, dated August 18, 2011, now include 23 groups of airplanes. UAL stated that operators that have airplanes in groups 1 through 7 likely did not comment on the related NPRM, and should be given the opportunity to do so.

We are considering additional AD rulemaking at this time for the related NPRM, Docket No. FAA-2011-0258 (76 FR 16579, March 24, 2011), which will re-open the comment period.

Boeing requested that we make editorial changes to the NPRM (76 FR 82207, December 30, 2011). Boeing suggested we delete the comma after “certain wire bundles,” and add the word “or” so that the first sentence in paragraph (g) of the NPRM would read as follows: “Within 72 months after the effective date of this AD, install a redundant switch of the cabin altitude pressure, replace the aural warning module (AWM) with a new or reworked AWM, and change certain wire bundles or connect certain capped and stowed wires, as applicable * * *.” Boeing noted that certain airplanes require the replacement of the AWM and connection of the capped and stowed wires, as specified in Boeing Special Attention Service Bulletin 737-21-1165, Revision 2, dated April 30, 2012.

We agree with the commenter's request for editorial changes for the reason provided by the commenter. We have changed the Summary and paragraph (g) of this final rule accordingly.

We have added paragraph (j)(3) to this final rule to delegate the authority to approve an AMOC for any repair required by this AD to the Boeing Commercial Airplanes Organization Designation Authorization (ODA).

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

• Are consistent with the intent that was proposed in the (NPRM (76 FR 82207, December 30, 2011) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 82207, December 30, 2011). 

We estimate that this AD affects 1,405 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

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

(3) Will not affect intrastate aviation in Alaska, and

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

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

The sponsors of the NADA and ANADAs listed in table 1 have requested that FDA withdraw approval because the products are no longer manufactured or marketed:

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive all event details until September 5, 2012. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to the event. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the participants, participant vessels, spectators, and the general public.

The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to provide for the safety of life on navigable waters of the United States during the Red Bull Flugtag.

On November 3, 2012, Red Bull North America is sponsoring the Red Bull Flugtag. The event will be held on the waters of Biscayne Bay, Miami, Florida. The event consists of 30 participants launching self-propelled flying machines from a 30ft ramp to the water below. 150 spectator vessels are expected to attend the event.

The special local regulation will encompass certain waters of Biscayne Bay, Miami, Florida. The special local regulation will be enforced from 11 a.m. until 4 p.m. on November 3, 2012. The special local regulation will encompass the following two areas: (1) An event area, where non-participant vessels are prohibited from entering, transiting through, anchoring in, or remaining within; and (2) a spectator area, where vessels are permitted to anchor. Non-participant persons and vessels may request authorization to enter, transit through, anchor in, or remain within the event area by contacting the Captain of the Port Miami via telephone at 305-535-4472, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the event area is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative. The Coast Guard will provide notice of the special local regulations by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of 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 rule is not significant for the following reasons: (1) The special local regulation will be enforced for only five hours; (2) although non-participant persons and vessels will not be able to enter, transit through, anchor in, or remain within the event area without authorization from the Captain of the Port Miami or a designated representative, they may operate in the surrounding area during the enforcement period; (3) non-participant persons and vessels may still enter, transit through, anchor in, or remain within the event area during the enforcement period if authorized by the Captain of the Port Miami or a designated representative; and (4) the Coast Guard will provide advance notification of the special local regulations to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Biscayne Bay from 11 a.m. to 4 p.m. on November 3, 2012.

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 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.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined 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 rule involves a special local regulation issued in conjunction with a regatta or marine parade. This rule is categorically excluded from further review under paragraph 35(b) and 34(h) of Figure 2-1 of the Commandant Instruction. An 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 rule.

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

On December 13, 2011, VA published in the Federal Register (76 FR 77455) a proposed rule to amend VA regulations governing the payment of SGLI or VGLI proceeds and benefit payments under the TSGLI program. Specifically, VA proposed to amend 38 CFR 9.1 and 9.5 to prohibit payment of SGLI or VGLI proceeds or a TSGLI benefit to: (1) A person who is convicted of intentionally killing the decedent or determined in a civil proceeding to have intentionally killed the decedent (known hereafter as the “slayer”); (2) a member of the slayer's family who is not related to the decedent by blood, legal adoption, or marriage; and (3) a member of the slayer's family who is related to the decedent by blood, legal adoption, or marriage and is convicted of a crime involving the intentional killing of the decedent or determined in a civil proceeding to have been involved in the intentional killing of the decedent.

Interested persons were invited to submit written comments on or before February 13, 2012. We received one comment, from Vietnam Veterans of America (VVA) concerning the terms used in, and the complexity of some of the language of, the proposed regulation. Based on internal agency reconsideration of the proposed regulation and the comment received from VVA, VA is making the following changes to the proposed rule.

First, VVA recommended adding the words “and wrongfully” and “and wrongful” as part of the descriptions provided in proposed § 9.5(e)(2)(i) and (iii), respectively. VA agrees with VVA's recommendation to include the words “and wrongfully” in § 9.5(e)(2)(i) because those words speak to the heinous aspect of the slayer's act that violates public policy. In order to be consistent, we will also add “and wrongfully” to § 9.1(l). In addition, this language is consistent with the language used in 38 CFR 3.11, which prohibits the payment of certain VA benefits to “[a]ny person who has intentionally and wrongfully caused the death of another person” if the benefits would be payable by reason of that death. The language of 38 CFR 3.11 serves as an appropriate model for the SGLI and VGLI Slayer's Rule Exclusion. However, VA did not incorporate the words “and wrongful” into proposed § 9.5(e)(2)(iii) because that provision has been completely revised in accordance with VVA's second recommendation to prohibit payment of insurance benefits to the family members of either the slayer or anyone who aided or assisted the slayer in causing the death of the decedent.

Second, VVA recommended simplifying the language of proposed § 9.5(e)(2) to make the regulation easier to understand as it relates to the persons who are prohibited from receiving insurance proceeds and benefits. VA agrees with VVA's suggestion and has modified the language of § 9.5(e)(2) to clarify the intent of the proposed rule that the slayer, anyone who assists the slayer in causing the death of the decedent, and the family members of the slayer or anyone who assists the slayer be prohibited from receiving insurance proceeds or benefits payable because of the decedent's death. Although proposed § 9.5(e)(2) included anyone who is convicted or found civilly liable for the death of the decedent, which would imply inclusion of an accomplice, the modified rule language removes any ambiguity regarding the inclusion of an accomplice under § 9.5(e)(2).

Third, VVA suggested changing the term “surviving spouse” in proposed § 9.5(e)(4)(i)(B) with the term “widow or widower” to make the reference consistent with the terms used in Chapter 19 of title 38, United States Code (U.S.C.). VA agrees with this suggestion and has altered the regulatory text accordingly. Use of the term “widow or widower” is consistent with the language of 38 U.S.C. 1970(a), which provides the order of preference for payments of SGLI and VGLI proceeds.

Finally, based on internal agency review, VA is removing proposed § 9.1(l)(6), which included “[d]omestic partner” as a “member of the family” for purposes of the provisions in § 9.5(e)(2), due to the unsettled legal landscape surrounding the recognition of such partnerships. Because recognition of the legality of such relationships varies from state to state, VA has determined that including such partnerships in this part would cause an undue administrative burden. The public is invited to comment on the omission of the term “domestic partner” from the definition of a “member of the family.”

For the reasons discussed above, VA is adopting the proposed rule as a final rule with the above-noted changes.

Regarding the interim final amendment that defines the term “member of the family” within this final rule at 38 CFR 9.1(l) not to include a “domestic partner,” we find, pursuant to 5 U.S.C. 553(b)(B), that there is good cause to dispense with advance public notice. As noted above, the legal landscape surrounding the recognition of such partnerships is unsettled. Therefore, at this time, the term's inclusion in the definition of a “member of the family” would be impracticable and contrary to the public interest. Accordingly, VA is issuing this final rule with an interim final amendment to omit the term “domestic partner” from § 9.1(l).

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule will have no such effect on State, local, and tribal governments or on the private sector.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866.

The Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will directly affect only individuals and will not directly affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.103, Life Insurance for Veterans.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on September 28, 2012, for publication.

For the reasons stated in the preamble, VA amends 38 CFR part 9 as set forth below:

Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 38652), EPA promulgated a new annual PM 2.5 NAAQS and on October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour NAAQS. On August 3, 2012, EPA proposed to approve in part, and conditionally approve in part, Kentucky's August 26, 2008, and July 17, 2012, infrastructure submissions for the 1997 annual and 2006 24-hour PM 2.5 NAAQS. See 77 FR 46352. A summary of the background for today's final action is provided below. See EPA's August 3, 2012, proposed rulemaking at 77 FR 46352 for more detail.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. The data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 annual and 2006 24-hour PM 2.5 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous PM NAAQS.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As already mentioned, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this final rulemaking are listed below  1 and in EPA's October 2, 2007, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards” and September 25, 2009, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards.”

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement of control measures. 2

• 110(a)(2)(D): Interstate transport. 3

• 110(a)(2)(E): Adequate resources.

• 110(a)(2)(F): Stationary source monitoring system.

• 110(a)(2)(G): Emergency power.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D. 4

• 110(a)(2)(J): Consultation with government officials; public notification; and PSD and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

Section 110(a) of the CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by the EPA, which is commonly referred to as an “infrastructure” SIP. The Commonwealth certified that the Kentucky SIP contains provisions that ensure the 1997 annual and 2006 24-hour PM 2.5 NAAQS are implemented, enforced, and maintained in the Commonwealth.

Today, EPA is taking final action on three actions related to Kentucky's section 110(a) obligations associated with the 1997 annual and 2006 24-hour PM 2.5 NAAQS. First, EPA has determined that, as described in its infrastructure submissions, Kentucky's SIP meets the section 110(a)(2) infrastructure requirements for both the 1997 annual and 2006 24-hour PM 2.5 NAAQS with the exception of elements 110(a)(2)(C) respecting prevention of significant deterioration (PSD) requirements, 110(a)(2)(D)(i) regarding interstate transport, and 110(a)(2)(J) respecting PSD requirements. Second, EPA is approving Kentucky's July 17, 2012, submission requesting approval of Kentucky Revised Statutes (KRS) Chapters 11A.020, 11A.030, 11A.040, 224.10-020 and 224.10-100 into the SIP to address element 110(a)(2)(E)(ii), related to state board requirements. Third, with respect to elements 110(a)(2)(C) and 110(a)(2)(J) as they both relate to PSD requirements, EPA is finalizing a conditional approval for these elements. On July 3, 2012, the Commonwealth submitted a commitment letter to EPA requesting conditional approval of outstanding requirements related to sections 110(a)(2)(C) and 110(a)(2)(J). In this letter, Kentucky provided a schedule on how the Commonwealth will address outstanding requirements promulgated in the New Source Review (NSR) PM 2.5 Rule related to the PM 2.5 standard for their PSD program and committing to providing the necessary SIP revision to address these NSR PM 2.5 Rule requirements. This letter of commitment meets the requirements of section 110(k)(4) of the CAA. See EPA's August 3, 2012, proposed rulemaking at 77 FR 46352 for more detail. If the Commonwealth fails to submit these revisions by October 3, 2013, today's conditional approval will automatically become a disapproval on that date and EPA will issue a finding of disapproval. EPA is not required to propose the finding of disapproval. If the conditional approval is converted to a disapproval, the final disapproval triggers the Federal Implementation Plan requirement under section 110(c). However, if the State meets its commitment within the applicable timeframe, the conditionally approved submission will remain a part of the SIP until EPA takes final action approving or disapproving the new submittal.

Kentucky's infrastructure submissions, provided to EPA on August 26, 2008, and July 17, 2012, and the July 3, 2012, letter of commitment address all the required infrastructure elements for the 1997 annual and 2006 24-hour PM 2.5 NAAQS with the exception of element 110(a)(D)(i). For those infrastructure elements for which EPA is today finalize approval, the Agency has determined that the Commonwealth's August 26, 2008, and July 17, 2012, submissions are consistent with section 110 of the CAA.

EPA received one off-topic comment on its August 3, 2012, proposed rulemaking to approve Kentucky's August 26, 2008, and July 17, 2012, infrastructure submissions as meeting the requirements of sections 110(a)(1) and (2) of the CAA for the 1997 annual and 2006 24-hour PM 2.5 NAAQS.

The comment was focused on the promulgation of the particulate matter NAAQS, and not the current rulemaking action. The Commenter stated that EPA PM 2.5 standard forces expensive mandates on states and industry and the designation process places a strain on local resources and discourages economic growth and EPA should withdraw the PM 2.5 standard. Also, the Commenter stated that EPA should consider public interest prior to entering into consent decrees.

This comment does not appear to be related to the issues presented in the proposed rulemaking—and instead, related to a wholly separate topic, promulgation of the PM NAAQS. The Commenter did not provide comments relevant to EPA's August 3, 2012, proposed approval of Kentucky's infrastructure submissions for the 1997 annual and 2006 24-hour PM 2.5 NAAQS. Instead, the Commenter appears to be providing comment on EPA's promulgation of PM NAAQS. Promulgations of NAAQS involve public comment opportunities and that would be the time to raise concerns specific to a particular NAAQS. Additionally, with regard to Commenter's general statement about consent decrees, although it is not clear to which specific consent decree commenter is referring, the CAA does provide for opportunities for public input regarding certain consent decrees.

EPA does not interpret these comments as relevant to the topic of EPA's proposed action on August 3, 2012, which is proposed approval, in part, and conditional approval, in part, of Kentucky's infrastructure submissions for the existing 1997 annual and 2006 24-hour PM 2.5 NAAQS. Instead, EPA interprets these comments to be off-topic and outside of the scope of today's final rulemaking.

Kentucky's infrastructure submissions, provided to EPA on August 26, 2008, and July 17, 2012, and the July 3, 2012, letter of commitment address all the required infrastructure elements for the 1997 annual and 2006 24-hour PM 2.5 NAAQS with the exception of element 110(a)(D)(i). For those infrastructure elements for which EPA is today finalize approval, the Agency has determined that the Commonwealth's August 26, 2008, and July 17, 2012, submissions are consistent with section 110 of the CAA.

As already described, Kentucky has addressed the elements of the CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, guidance to ensure that 1997 annual and 2006 24-hour PM 2.5 NAAQS are implemented, enforced, and maintained in the Commonwealth with the exception of the elements noted above. EPA is taking final action to approve in part, and conditionally approve in part, Kentucky's August 26, 2008, and July 17, 2012, submissions for 1997 annual and 2006 24-hour PM 2.5 NAAQS because these submissions are consistent with section 110 of the CAA. These actions are not approving any specific rule, but rather making a determination that Kentucky's already approved SIP meets certain CAA requirements.

In addition, EPA is also taking final action to approve KRS Chapters 11A.020, 11A.030, 11A.040, 224.020 and 224.10-100 in the SIP.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 3, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2012-0029 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 3, 2012 . Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2012-0029, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.htm.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of April 4, 2012 (77 FR 20344) (FRL-9340-4), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1F7954) by E.I. DuPont de Nemours and Company, DuPont Crop Protection, 1007 Market Street, Wilmington, DE 19898. The petition requested that 40 CFR 180.628 be amended by establishing tolerances for residues of the insecticide chlorantraniliprole,3-bromo-N-[4-chloro-2-methyl-6-[(methylamino)carbonyl]phenyl]-1-(3-chloro-2-pyridinyl)-1H-pyrazole-5-carboxamide, in or on oilseed, rapeseed subgroup 20A at 2.0 parts per million (ppm); oilseed, sunflower subgroup 20B at 2.0 ppm; oilseed, cottonseed subgroup 20C at 0.3 ppm; soybean aspirated grain fractions at 300 ppm; vegetable, legume, group 6 at 2.0 ppm; vegetable, foliage of legume, group 7 at 30 ppm; and forage, vegetable, foliage of legume, group 7 at 90 ppm. That document referenced a summary of the petition prepared by E. I. DuPont de Nemours and Company, the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA has revised the tolerance associated with aspirated grain fractions to 640 ppm. EPA is also increasing the existing tolerances in cattle, fat; goat, fat; horse, fat; and sheep, fat to 0.5 ppm. EPA has also increased the existing tolerances in cattle, meat; goat, meat; horse, meat; and sheep, meat to 0.1 ppm. The reason for these changes are explained in Unit IV.D.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for chlorantraniliprole including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with chlorantraniliprole follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Chlorantraniliprole is not genotoxic, neurotoxic, immunotoxic, carcinogenic, or developmentally toxic. Chlorantraniliprole is not acutely toxic via oral, dermal or inhalation routes of exposure, and is not an eye or skin irritant nor a dermal sensitizer. There was only one animal toxicity study (18-month carcinogenicity study in mice) in the toxicology database which evidenced any adverse effect of chlorantraniliprole. This study was used to establish a point of departure (POD), based on hepatocellular effects, for the chronic dietary exposure scenario. Although residential and occupational exposure is expected over the short- and intermediate-term (via the dermal and/or incidental oral route), there is no hazard expected via these routes/durations, and therefore no risk associated with these scenarios.

Specific information on the studies received and the nature of the adverse effects caused by chlorantraniliprole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Chlorantraniliprole: Human Health Risk Assessment for Proposed Uses on Oilseeds (Subgroups 20A through C) and Soybean (Crop group 6 and 7),” page 16 in docket ID number EPA-HQ-OPP-2012-0029.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological POD and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for chlorantraniliprole used for human risk assessment is discussed in Unit III.B of the final rule published in the Federal Register of July 27, 2011 (76 FR 44815) (FRL-8875-5).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to chlorantraniliprole, EPA considered exposure under the petitioned-for tolerances as well as all existing chlorantraniliprole tolerances in 40 CFR 180.628. EPA assessed dietary exposures from chlorantraniliprole in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for chlorantraniliprole; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the United States Department of Agriculture (USDA) 1994-1996 and 1998 Continuing Survey of Food Intake by Individuals (CSFII). As to residue levels in food, EPA assumed tolerance levels residues and 100% crop treated (CT). Dietary Risk Evaluation System (DEEM) default processing factors were used.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that chlorantraniliprole does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for chlorantraniliprole. Tolerance level residues and/or 100% CT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for chlorantraniliprole in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of chlorantraniliprole. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the First Index Reservoir Screening Tool (FIRST), Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of chlorantraniliprole for acute exposures are estimated to be 55.30 parts per billion (ppb) for surface water and 0.842 ppb for ground water, and for chronic exposures for cancer and non- cancer assessments are estimated to be 39.87 ppb for surface water and 0.842 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 39.87 ppb was used to assess the contribution to drinking water. No acute dietary risk assessment was performed because no acute hazard was identified.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Chlorantraniliprole is currently registered for the following uses that could result in residential exposures: Termiticide, ornamentals, and turfgrass. EPA assessed residential exposure using the following assumptions: Residential exposure could occur for short-term and intermediate-term durations; however, due to the lack of toxicity identified for short- and intermediate-term durations via relevant routes of exposure, no risk is expected from these exposures. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found chlorantraniliprole to share a common mechanism of toxicity with any other substances, and chlorantraniliprole does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that chlorantraniliprole does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. There were no effects on fetal growth or postnatal development up to the limit dose of 1,000 milligrams/kilogram/day (mg/kg/day) in rats or rabbits in the development or 2-generation reproduction studies. Additionally, there were no treatment related effects on the numbers of litters, fetuses (live or dead), resorptions, sex ratio, or post-implantation loss and no effects on fetal body weights, skeletal ossification, and external, visceral, or skeletal malformations or variations.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for chlorantraniliprole is complete.

ii. There is no indication that chlorantraniliprole is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that chlorantraniliprole results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. A poultry feeding study is needed, but the results of the poultry metabolism study conducted at a feeding level twice the expected dietary burden and at a duration of 14 days, well in excess of the mandatory 3 days, are used to provide a conservative estimate of residues in poultry commodities. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to chlorantraniliprole in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by chlorantraniliprole.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, chlorantraniliprole is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to chlorantraniliprole from food and water will utilize 6% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of chlorantraniliprole is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no short-term adverse effect was identified, chlorantraniliprole is not expected to pose a short-term risk.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no intermediate-term adverse effect was identified, chlorantraniliprole is not expected to pose a intermediate-term risk.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, chlorantraniliprole is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to chlorantraniliprole residues.

Adequate enforcement methodology (liquid chromatography mass spectrometry (LC/MS/MS)) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has established MRLs for chlorantraniliprole in or on the oilseed cottonseed subgroup 20C at 0.3 ppm. This MRL is the same as the tolerance being established for chlorantraniliprole the oilseed cottonseed subgroup 20C in the United States by this action.

The Codex has established MRLs for chlorantraniliprole in or on meat (fat) at 0.2 ppm. These MRLs are different than the tolerances being established for chlorantraniliprole in the United States on cattle, horse, sheep and goat fat (0.5 ppm) by this action. This results from the differences in treated commodities used in the livestock dietary exposure calculation and in the methods of diet calculation. The United States tolerances include more livestock feed items than Codex. Codex calculates the dietary burden based on the worst possible case, whereas NAFTA countries utilize a reasonably balanced diet that considered nutritional needs of livestock.

The EPA received a comment from a private citizen stating that pesticides should be banned. The Agency understands the commenter's concerns and recognizes that some individuals believe that pesticides should be banned completely. However, under the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute.

The petition requested an aspirated grain fractions tolerance of 300 ppm. EPA is establishing a 640 ppm tolerance in aspirated grain factions based on evaluation of the soybean processing data. A processing study submitted for the generation of aspirated grain dust from soybeans provided a processing factor (320) that was used with the crop group 6 tolerance (2.0 ppm) to obtain a tolerance estimate (320 × 2 = 640 ppm) for aspirated grain fractions. Thus, soybeans with residues at the tolerance level (2 ppm) would yield aspirated grain fractions with residues of 640 ppm.

EPA is increasing the tolerance levels for certain livestock commodities because of the addition of soybean aspirated grain fractions as a feed item and the resulting increase in certain livestock dietary burdens. Previously, aspirated grain fractions (corn) contributed to the dietary burden; this is now replaced by soybean aspirated grain fractions which results in a greater dietary contribution. The beef cattle dietary burden is now elevated from 73 ppm to 110 ppm. This increase in the cattle dietary burden necessitates an increase in the tolerances of the meat and fat of cattle, sheep, horses, and goats. The existing tolerances for liver and kidney will cover the increased dietary exposure of cattle. The milk tolerance is not affected, because aspirated grain fractions are not a significant diary cow feed item.

Therefore, tolerances are established for residues of chlorantraniliprole, 3-bromo- N -[4-chloro-2-methyl-6-[(methylamino)carbonyl]phenyl]-1-(3-chloro-2-pyridinyl)-1 H -pyrazole-5-carboxamide, in or on the following commodities: oilseed, rapeseed subgroup 20A at 2.0 ppm; oilseed, sunflower subgroup 20B at 2.0 ppm; oilseed, cottonseed subgroup 20C at 0.3 ppm; soybean aspirated grain fractions at 640 ppm; vegetable, legume, group 6 at 2.0 ppm; vegetable, foliage of legume, group 7, forage at 30 ppm; vegetable, foliage of legume, group 7, hay at 90 ppm; cattle, goat, horse and sheep, fat at 0.5 ppm, and cattle, goat, horse and sheep, meat at 0.1 ppm. Consistent with the petitioner's request, EPA is also deleting certain chlorantraniliprole tolerances that are no longer needed as a result of the crop group tolerances added by this action.

This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

In FR Doc. 2012-19079 of August 31, 2012 (77 FR 53258), there were a number of technical errors that are identified and corrected in the Correction of Errors section of this correcting document. The provisions in this correcting document are effective as if they had been included in the final rule appearing in the August 31, 2012 Federal Register . Accordingly, the corrections are effective October 1, 2012.

On page 53268, in our summary of the provisions of the Hospital Inpatient Quality Reporting (IQR) Program, we inadvertently referenced hospital-acquired condition (HAC) measure sets instead of healthcare-associated infection (HAI) measures sets. Also on this page, in our discussion of the cost and benefits of the Hospital Readmission Reduction Program, we made a technical error in the dollar amount by which the Hospital Readmission Reduction Program will reduce payments to hospitals.

On page 53278, we made an inadvertent typographical error in the discussion of prospective adjustments for FY 2010 documentation and coding effect.

On page 53315, in our discussion of International Classification of Disease, Ninth Revisions, Clinical Modification (ICD-9-CM), we inadvertently reference ICD-9-CM coding system instead of ICD-9-CM diagnosis codes.

On pages 53386 and 53392, we made typographical errors in our summation of a public comment regarding the Hospital Readmission Reduction Program.

On page 53387, we are correcting the Web site for obtaining the MedPAR files referenced in our discussion of aggregate payments for excess readmissions and aggregate payments for all discharges under the Hospital Readmission Reduction Program.

On page 53485, in our discussion of long-term care hospital (LTCH) moratorium on the 25-percent payment adjustment threshold policy, we made typographical errors in an example.

On page 53508, we made a grammatical error in our discussion of the Agency for Healthcare Research and Quality (AHRQ) indicators.

On page 53545, in our discussion of validation approaches for the Hospital IQR Program, we made a typographical error.

On page 53557, in our discussion of CDC/NHSN-based HAI measures for the PPS-Exempt Cancer Hospital Quality Reporting Program (PCHQR), we made a grammatical error.

On page 53601, in the table regarding the final performance standards for the FY 2015 Hospital Value-Base Purchasing (HVBP) Program, we inadvertently omitted a clinical process of care measure.

On page 53648, in our discussion of hospital-based inpatient psychiatric service (HBIPS) under the IPFQR Program, we made a typographical error.

On page 53655, in our discussion of the reporting and submission requirements for 2014 IPFQR payment determinations, we inadvertently made technical and typographical errors in a response to a public comment.

On page 53668, in our discussion of the information collection requirements for the LTCH Quality Reporting Program, we made two technical errors in describing the number of hospitals that report data to the National Health Safety Network (NHSN).

On page 53669, in our discussion of the information collection requirements for the LTCH Quality Reporting Program, we made a grammatical error in our response to a comment regarding the cost associated with reported pressure ulcer data.

On page 53706, in the table titled “Comparison of Factors and Adjustments: FY 2012 Capital Federal Rate and FY 2013 Capital Federal Rate,” there was a typographical error in the GAF/DRG Adjustment Factor shown for FY 2012.

On page 53731, we made a technical error in the number and hospitals that we estimate will have their base operating payments reduced by readmission reduction program.

On pages 53717, we list the tables that are tables available only through the Internet. We are correcting the following errors in Tables 9A, 9C, and 15:

In Table 9A.—Hospital Reclassifications and Redesignations—FY 2013, Provider 010164 was inadvertently omitted.

In Table 9C.—Hospitals Redesignated as Rural under Section 1886(d)(8)(E) of the Act—FY 2013, Provider 040118 was mistakenly listed as a section 401 provider and will be removed. Provider 290009 was inadvertently omitted and will be listed as a rural reclassification from CBSA 39900 to CBSA 29.

In addition, we note that the correction of errors for Tables 9A and 9C require us to make conforming changes to Tables 2, 4A, 4B, 4C, and 4J, respectively.

In Table 15.—FY 2013 Final Readmissions Adjustment Factors, we inadvertently included Medicare inpatient claims from the FY 2008 MedPAR file with discharge dates occurring prior to July 1, 2008 in determining the base operating DRG payment amounts in the calculation of aggregate payments for excess readmissions and aggregate payments for all discharges that were used to calculate the readmissions adjustment factors published for the FY 2013 IPPS/LTCH final rule. Under the policy we adopted in that final rule, for FY 2013, aggregate payments for excess readmissions and aggregate payments for all discharges are calculated using data from Medicare inpatient MedPAR claims with discharge dates occurring on or after July 1, 2008, and no later than June 30, 2011.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the Federal Register . This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

In our view, this correcting document does not constitute a rule that would be subject to the APA notice and comment or delayed effective date requirements. This correcting document corrects technical errors and typographical errors in the preamble, regulations text, tables included in the Addendum of the FY 2013 IPPS/LTCH PPS final rule, and tables posted on the CMS Web site but does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. As a result, this correcting document is intended to ensure that the preamble, regulations text, tables included in the Addendum of the FY 2013 IPPS/LTCH PPS final rule, and tables posted on the CMS Web site accurately reflect the policies adopted in that final rule.

In addition, even if this were a rule to which the notice and comment and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest. Furthermore, such procedures would be unnecessary, as we are not altering the policies that were already subject to comment and finalized in our final rule. Therefore, we believe we have good cause to waive the notice and comment and effective date requirements.

In FR Doc. 2012-19079 of August 31, 2012 (77 FR 53258), make the following corrections:

1. On page 53268,

a. First column, first partial paragraph, line 10, the phrase “HAC measures sets” is corrected to read “HAI measures sets”.

b. Third column, last paragraph, second line from the bottom, the figure “$280” is corrected to read “$290”.

2. On page 53278, third column, first partial paragraph, line 32, the phrase “in FY 2010.” is correct to read “in FY 2013.”.

3. On page 53315, third column, last paragraph, line 4, the phrase “the ICD-9-CM coding system” is corrected to read “the ICD-9-CM diagnosis codes”.

4. On page 53386, third column, third paragraph, line 7, the phrase “for applicable conditions.” is deleted.

5. On page 53387, third column, second paragraph, lines 37 and 38, the Web site “ http://www.cms.hhs.gov/LimitedDataSets/ ” is corrected to read “ http://www.cms.gov/Research-Statistics-Data-and-Systems/Files-for-Order/LimitedDataSets/index.html ”.

6. On page 53392, lower half of the page, first column, first paragraph—

a. Line 10, the phrase “all discharges for applicable conditions” is corrected to read “all discharges”.

b. Lines 12 and 13, the phrase “all discharges for applicable conditions.” is corrected to read “all discharges.”.

7. On page 53485, second column, first partial paragraph—

a. Line 26, the phrase “IPPS Hospital A” is corrected to read “IPPS Hospital B”.

b. Line 29, the phrase “LTCH B” is corrected to read “LTCH A”.

c. Line 31, the phrase “§ 412.536(a)(3)(1)” is corrected to read “§ 412.536(a)(3)(i)”.

8. On page 53508, second column, last paragraph, line 1, the phrase “We wish to clarify” is corrected to read “We are clarifying”.

9. On page 53545, second column, first partial paragraph, line 5, the bracketed phrase “[or catheter?]” is corrected to read “or catheter”.

10. On page 53557, second column, first full paragraph, line 2, the phrase “with other our” is corrected to read “with our other”.

11. On page 53601, bottom of the page, the table entitled “FINAL PERFORMANCE STANDARDS FOR THE FY 2015 HOSPITAL VBP PROGRAM CLINICAL PROCESS OF CARE, OUTCOME, AND EFFICIENCY DOMAINS,” the listed entry is added after Measure ID AMI-8a to read as follows:

12. On page 53648, first column, first full paragraph, lines 9 and 10, the phrase “physical restraint (HBIPS-2) use” is corrected to “physical restraint use”

13. On page 53655, third column, second paragraph, lines 6 and 7, the phrase “behavioral services in the IPF settings” is corrected to read “behavioral health services in the IPF setting.”

14. On page 53668,

a. Second column, second full paragraph, line 9, the phrase “over 200” is corrected to read “upwards of 300”.

b. Third column, first partial paragraph, lines 17 and 18, the phrase “321 LTCHs” is corrected to read “upwards of 300 LTCHs”.

15. On page 53669, third column, first full paragraph, lines 9 through 11, the phrase “to comply with the reporting pressure ulcer data.” is corrected to read “to report pressure ulcer data.”.

1. On page 53706, middle of the page, the table entitled, “COMPARISON OF FACTORS AND ADJUSTMENTS: FY 2012 CAPITAL FEDERAL RATE AND FY 2013 CAPITAL FEDERAL RATE,” listed entry is corrected to read as follows:

2. On page 53731, first column, first paragraph, line 28, the figure “2,206” is corrected to read “2,217”.

On August 16, 2010, [75 FR 49850] the Department published its final rule to harmonize with many aspects of the revised Department of Health and Human Services (HHS) Mandatory Guidelines [73 FR 71858]. One item with which the DOT harmonized was the laboratory testing for 6-acetylmorphine (6-AM) without a morphine marker. 6-AM is a unique metabolite produced when a person uses the illicit drug heroin. Prior to the October 1, 2010, rulemaking, both the HHS and Department of Transportation (DOT) regulations required the laboratory to first test for morphine, and if it detected morphine at the HHS/DOT cutoff of 2000ng/mL, the lab would then test for 6-AM.

For the reasons discussed in the DOT final rule [75 FR 49850], we decided that, until more experience was gained with the new testing procedures for 6-AM, we would place additional requirements on laboratories and MROs. Specifically, when there was a 6-AM positive result and morphine was not detected by a laboratory at the 2000ng/mL cutoff, we added a requirement for the laboratory and MRO to determine whether morphine was detected at the laboratory's level of detection (LOD). If morphine was not detected at the laboratory's LOD, the laboratory and MRO were to report that result to DOT's Office of Drug and Alcohol Policy and Compliance (ODAPC). After consulting with ODAPC, the MRO would make a verified result determination, keeping in mind that there is no legitimate explanation for 6-AM in the employee's specimen [see § 40.151(g)]. The Department would track these results and discuss them with HHS.

On May 4, 2012, the Department issued an IFR [77 FR 26471] and effective July 3, 2012, related to 6-AM testing. For reasons stated in that IFR, we removed the requirement for laboratories and MROs to consult with one another regarding the testing for the presence of 6-AM. The IFR also streamlined the laboratory analysis and MRO reporting of 6-AM results by not having either the laboratory or MRO report the 6-AM information to ODAPC. The IFR also sought comments to the IFR which were to be submitted by June 4, 2012. There were two such comments.

There were two comments to the docket representing three organizations. One comment was submitted by a large organization which represents physicians who are MROs. The other comment was submitted by a large medical review officer service and consortium which provide drug and alcohol testing services primarily to the pipeline industry.

Each of the commentors fully supported the Department's position on amending the requirements for testing and reporting 6-AM test results. Their support of the IFR further reinforces that there are no legitimate medical explanations for the confirmation of 6-AM on a DOT drug test and that the MRO must make positive results determinations in these cases.

One commenter asked whether we had noted a spike followed by a decline in the 6-AM results during the first year of testing, as they did. They wondered whether our commissioned study was designed to shed light on their observation.

We would note that over time, the Department has indeed seen an increase of laboratory-reported 6-AM test results. However, we found that the largest semi-annual period rise of 6-AM results, by number and percentage increase, came even before the October 2010 effective date of the new rules. This larger rise was noted when we compared the July-December 2009 period with the January-June 2010 period. Also, it is important to note that the number of total drug tests reported by laboratories has risen during each 6-month period, starting with the July-December 2009 period, and the number of 6-AM positive results has steadily risen each period since July-December 2008.

The following table displays the laboratory data for 6-AM before, during transition, and after full implementation of the new testing protocols:

The Harbor Porpoise Take Reduction Plan (Plan) was implemented in late 1998 pursuant to section 118(f) of the Marine Mammal Protection Act (MMPA) to reduce the level of serious injury and mortality of the Gulf of Maine/Bay of Fundy (GOM/BOF) stock of harbor porpoises (63 FR 66464, December 2, 1998). NMFS amended the Plan in 2010 (75 FR 7383, February 19, 2010) to address increased mortalities of harbor porpoises in New England and Mid-Atlantic commercial gillnet fisheries due to non-compliance with the Plan requirements and observed interactions occurring outside of existing management areas.

The 2010 amendments, based largely on consensus recommendations from the Team, included the expansion of seasonal and temporal requirements within the Plan's management areas, the incorporation of additional management areas, and the creation of three closure areas off the coast of New England that would prohibit the use of gillnet gear if certain levels of harbor porpoise bycatch are exceeded (consequence closure area strategy).

For New England, the 2010 amendments to the Plan implemented a “consequence” closure strategy, which would close specific areas to gillnet gear during certain times of the year if observed average bycatch rates exceed specified target bycatch rates over the course of two consecutive management seasons. If observed bycatch rates exceeded the target rates, the following three areas would become closed: the Coastal Gulf of Maine, Eastern Cape Cod, and Cape Cod South Expansion Consequence Closure Areas. This measure was intended to provide an incentive for the gillnet industry to comply with pinger requirements in areas with historically high harbor porpoise bycatch levels resulting from relatively low levels of compliance. The consequence closures, if implemented, would further reduce harbor porpoise mortalities due to the times and areas chosen for their implementation.

The Coastal Gulf of Maine Consequence Closure would be triggered if the observed average bycatch rates of harbor porpoises in the Mid-Coast, Stellwagen Bank, and Massachusetts Bay Management Areas (combined) exceed the target bycatch rate of 0.031 harbor porpoise takes/metric tons of fish landed (takes/mtons) (1 harbor porpoise taken per 71,117 pounds of fish landed) after two consecutive management seasons. If triggered, the use of gillnet gear would be prohibited during the months of October and November, which historically have been the months with the highest amount of observed harbor porpoise bycatch. When this area is not closed, the seasonal requirements of the three overlapping management areas, including the March gillnet closure in the Massachusetts Bay Management Area, would remain in effect.

The Cape Cod South Expansion and Eastern Cape Cod Consequence Closures would be triggered if the observed average bycatch rate of harbor porpoises in the Southern New England Management Area exceeded the target bycatch rate of 0.023 takes/mtons (1 harbor porpoise taken per 95,853 pounds of fish landed) after two consecutive management seasons. If triggered, both areas would prohibit the use of gillnet gear annually from February 1 through April 30. When the consequence closure areas are not closed, the seasonal pinger requirements of the overlapping Southern New England Management Area would remain in effect.

Consequence closure area monitoring began with the start of first full management season after implementation of the 2010 amendments. The first monitoring season occurred from September 15, 2010 through May 31, 2011, and the second occurred from September 15, 2011 through May 31, 2012.

The two-year average observed harbor porpoise bycatch rate for the areas associated with the Coastal Gulf of Maine Consequence Closure Area is 0.057 takes/mtons (Orphanides, 2012). This is above the target bycatch rate (0.031 takes/mtons), triggering the implementation of the Coastal Gulf of Maine Closure Area (Figure 1).

The two-year average observed harbor porpoise bycatch rate in the Southern New England Management Area is 0.020 takes/mtons (Orphanides, 2012), indicating that the two-year average does not exceed the target bycatch rate (0.023 takes/mtons).

In April 2012, NMFS sent letters to gillnet fishermen notifying them that NMFS planned to implement the Coastal Gulf of Maine Closure Area beginning October 1, 2012. Following this notification, in August 2012, NMFS received a letter from a fishing industry representative requesting that the agency review harbor porpoise bycatch and fishing effort information in the coastal Gulf of Maine area after the 2010 implementation of the amendments to the Plan, and New England Multispecies Fishery Management Plan Amendment 16, which implemented sector management and greatly modified the way New England groundfish fishermen could fish. The letter specifically requested that the timing of the closure be shifted from October and November to mid-February through March, and that the area be modified to be slightly smaller. This request highlighted a conservation benefit to harbor porpoises that would occur by shifting the timing, as well as an economic benefit for the fishing industry by allowing them to fish in the area during October and November. In considering this request, NMFS examined available harbor porpoise bycatch and fishing information from 2010 through 2012. Within the boundaries of the Coastal Gulf of Maine Closure Area, harbor porpoise bycatch data indicated that a higher number of observed takes occurred during the spring, particularly in February and March, than in the fall (October and November), equating to a higher estimated total bycatch in the spring. Additionally, the bycatch rate during the spring was higher than in the fall.

Since the implementation of groundfish sectors in May 2010, it is possible that fishing effort distribution has shifted, thus affecting the distribution and timing of harbor porpoise bycatch. Alternatively, this change may reflect a shift in harbor porpoise distribution. However, this information has not yet been fully analyzed.

According to 50 CFR 229.33(f)(2), the Assistant Administrator for Fisheries may revise the requirements of the Plan through notification published in the Federal Register if NMFS determines that the boundaries or timing of a closed area is inappropriate. After consideration of this recent information, NMFS will temporarily shift the implementation of year 1 of the Coastal Gulf of Maine Closure Area from October 1, 2012 through November 30, 2012, to February 1, 2013 through March 31, 2013. This temporary shift will be for year 1 only, and will include the entire Coastal Gulf of Maine Closure Area as identified in the regulations for the full two-month time period. This temporary shift of the closure will provide greater conservation benefits to harbor porpoises. During October, the Team will convene to consider data generated since the last Team meeting in late 2007. New information includes: new harbor porpoise abundance estimates, the most recent harbor porpoise bycatch information that indicates that harbor porpoise bycatch is exceeding allowable levels under the MMPA, and fishing effort and distribution information within the consequence closure area boundaries as well as throughout the entire range of the Plan. The Team will also assess how the implementation of groundfish sectors has affected gillnet effort and distribution and any related effects on harbor porpoise bycatch. This information will allow the Team to develop a comprehensive management strategy to further reduce the bycatch of harbor porpoises to acceptable levels under the MMPA. After year 1, the closure area timing will revert to October and November, pending the implementation of revised conservation measures resulting from the Team's deliberations this fall.

Despite the shift in the timing of the Coastal Gulf of Maine Closure to February and March of 2013, NMFS stresses the importance of fully complying with the Plan's pinger requirements (i.e., proper number of fully functional pingers present on each net string) to reduce harbor porpoise bycatch. Pingers are still required on gillnet fishing gear in the Mid-Coast Management Area from September 15 through May 31 and the Massachusetts Bay and Stellwagen Bank Management Areas from November 1 through May 31. Additionally, the entire Massachusetts Bay Management Area is closed during March.

Orphanides C.D. 2012. New England harbor porpoise bycatch rates during 2010-2012 associated with Consequence Closure Areas. US Dept. of Commerce, Northeast Fisheries Science Center Reference Doc 12-19; 15 pp.

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

The 2012 total allowable catch (TAC) of pollock in Statistical Area 620 of the GOA is 45,808 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish of the GOA (77 FR 15194, March 14, 2012).

As of September 27, 2012, approximately 5,200 mt of pollock remain in the 2012 TAC for pollock in Statistical Area 620 of the GOA. Based on fleet capacity and potentially high levels of fleet participation in this fishery, the Administrator, Alaska Region (Regional Administrator) has determined that the pollock TAC for Statistical Area 620 of the GOA could be exceeded if a fishery were allowed to occur. NMFS, in accordance with § 679.25(a)(1)(i), § 679.25(a)(2)(i)(A), and § 679.25(a)(2)(iii)(B) is issuing an inseason adjustment prohibiting directed fishing for pollock in Statistical Area 620 of the GOA. The Regional Administrator has determined that this action is the least restrictive necessary to ensure that the TAC not be exceeded.

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

This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 620 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 27, 2012.

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

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