In FR Doc. 2012-23373, appearing on page 58739 in the September 24, 2012 issue of the Federal Register (77 FR 58739) a correction is necessary on page 58746. Specifically, SBA increased the size standard for NAICS 611519 from $7 million to $14 million in average annual receipts but retained the $35.5 million size standard for the Job Corps Centers exception to that industry. The supplementary information in the final rule provided a detailed explanation of why SBA was retaining its current $35.5 million size standard for the Job Corps Centers exception. However, the Job Corps Centers exception to NAICS 611519 and its size standard were deleted in error from SBA's table of size standards in 13 CFR 121.201.

This action is needed to correct the table in 13 CFR 121.201 by reinstating the Job Corps Centers exception under NAICS 611519 and its corresponding $35.5 million size standard. As published, the final rule and CFR can lead a reader to conclude incorrectly that SBA deleted the Job Corps Centers exception and its $35.5 million size standard from SBA's table of size standards. SBA had explained in the final rule why it was retaining the existing $35.5 million size standard for Job Corps Centers instead of changing it. When the rule was published in the Federal Register, the entry for “611519” was revised, with no change to the $35.5 million size standard for the Job Corps Centers exception under that entry. However, this appears to have been read as the removal of Job Corps Centers exception and its $35.5 million size standard, resulting in their deletion from the table in 13 CFR 121.201.

For the reasons set forth in the preamble, SBA amends 13 CFR part 121 by making the following correcting amendment:

On August 18, 2010, the FAA published Special Condition No. 23-248-SC for the Cirrus Design Corporation new model SF50 “Vision” Jet. The SF50 is a low-wing, five-plus-two-place (2 children), single-engine turbofan-powered aircraft. It incorporates an Electronic Flight Information System (EFIS), pressurized cabin, retractable gear, and a V-tail. The turbofan engine is mounted on the upper fuselage/tail cone along the aircraft centerline. It is constructed largely of carbon and fiberglass composite materials. Like other Cirrus products, the SF50 includes a ballistically deployed airframe parachute.

The model SF50 has a maximum operating altitude of 28,000 feet, where it cruises at speeds up to 300 Knots True Air Speed (KTAS). Its MMO will not exceed 0.62 Mach. The maximum takeoff weight will be at or below 6000 pounds with a range at economy cruise of roughly 1000 nm. Cirrus intends for the model SF50 to be certified for single-pilot operations under 14 CFR part 91 and 14 CFR part 135 operating rules. The following operating conditions will be included:

Before Amendment 3-4, Section 3.19 of Civil Air Regulation (CAR) part 3 required service testing of all airplanes type certificated on or after May 15, 1947. The purpose of the testing was to “ascertain whether there is reasonable assurance that the airplane, its components, and equipment are reliable, and function properly.”

Amendment 3-4 to CAR part 3 became effective January 15, 1951, and deleted the service test requirements in Section 3.19 for airplanes of 6,000 pounds maximum weight or less. The introductory text published in Amendment 3-4 explained that most of the significant changes in the amendment stemmed from “the desire for simplification of the rules in this part with respect to the smaller airplanes, specifically those of 6,000 pounds maximum weight or less, which would be expected to be used mainly as personal airplanes.” The introductory material also stated the service test requirement was removed for airplanes of 6,000 pounds maximum weight or less because “experience seems to indicate that this rule imposes a burden upon the manufacturers not commensurate with the safety gained.” The requirement for Function and Reliability (F&R) testing, and the exception for airplanes of 6,000 pounds or less maximum weight, is now found in 14 CFR part 21, section 21.35(b)(2).

The decision to exempt airplanes of 6,000 pounds maximum weight or less from F&R testing was based on the state of technology envisioned in 1951. At that time, airplanes of 6,000 pounds maximum weight or less were expected to be used mainly as personal airplanes. They used simple, “stand-alone” systems whose failure was more likely to be an inconvenience than an accident. The situation is different today. Technological advances allow airplanes weighing less than 6,000 pounds to be more complex and integrated than some transport airplanes. New part 23 airplanes can incorporate sophisticated equipment not previously used in a part 23 aircraft. Additionally, part 23 airplanes are being used for business and commercial transportation. They should no longer be envisioned mainly as personal airplanes. Therefore, a special condition to require F&R testing for airplanes weighing 6,000 pounds or less is needed where the level of sophistication is beyond evaluating failures by inspection.

The model SF50 certification project was granted an extension on September 19, 2011. 14 CFR part 21, Amendment 95, published in the Federal Register (76 FR 64229) on October 18, 2011, incorporated Special Condition No. 23-248-SC. On December 11, 2012, Cirrus Design Corporation elected to adjust the model SF50 certification basis to Amendment 21-95.

The FAA is withdrawing Special Condition No. 23-248-SC because Cirrus elected to revise the model SF50 certification basis to Amendment 21-95.

The authority citation for this Special Condition withdrawal is 49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19.

Withdrawal of this special condition does not preclude the FAA from issuing another notice on the subject matter in the future or committing the agency to any future course of action.

The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are unnecessary because the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On January 15, 2013, The Boeing Company (referred to as “Boeing” after this point) applied for a change to Type Certificate No. A6WE to install inflatable lapbelts on Boeing Model 717-200 series airplanes. The Model 717-200 series airplanes are narrow body airplanes with twin-jet rear-mounted engines. They are equipped with two Rolls-Royce Deutschland Ltd & Co KG BR700-715A1-30 or BR700-715C1-30 engines. The maximum takeoff weight is 121,000 pounds/154,885 kilograms. They have a 134 passenger and 6 crew member capacity.

The Model 717-200 series airplanes will use inflatable lapbelts, which are designed to limit the forward excursion of occupants in the event of an accident. This will reduce the potential for head injury, thereby reducing the head injury criteria (HIC) measurement. Inflatable lapbelts behave similarly to automotive inflatable airbags, but in these airplanes, the airbags are integrated into the lapbelts and they inflate away from the seated occupants. While inflatable airbags are now standard in the automotive industry, the use of inflatable lapbelts is novel for commercial aviation.

Title 14, Code of Federal Regulations (14 CFR) 121.311(j) requires that no person may operate a transport category airplane type certificated after January 1, 1958, and manufactured on or after October 27, 2009, in passenger-carrying operations, after October 27, 2009, unless all passenger and flight attendant seats on an airplane operated under part 121 rules meet the requirements of § 25.562 in effect on or after June 16, 1988.

The Boeing Model 717-200 series airplanes are required to show compliance with certain aspects of § 25.562 as specified per Type Certificate Data Sheet (TCDS) A6WE. But Boeing Model 717-200 series airplanes manufactured on or after October 27, 2009, operated under part 121 must meet all of the requirements of § 25.562 for passenger and flight attendant seats. Thus, it is in the interest of installers to show full compliance to § 25.562, so that an operator under part 121 may be able to use the airplanes without having to do additional certification work. Also, some foreign civil airworthiness authorities have invoked these same operator requirements in the form of airworthiness directives.

Section 25.785 requires that occupants be protected from head injury by either ensuring that any object that could injure them is outside the striking radius of their heads or adding padding. Traditionally, this has required seats to be set back so that occupants' heads are 35 inches from any bulkhead or other rigid interior feature. If this is not practical, specified types of padding must be added. The relative effectiveness of these means of injury protection was not quantified. Amendment 25-64 to 14 CFR part 25, specifically § 25.562, created a new standard that quantifies required head injury protection.

Section 25.562 requires that for seat and restraint systems, applicants must use dynamic tests or analysis to demonstrate that persons do not suffer serious head injury under specific conditions. Section 25.562 also requires that protection must be provided or the seat must be designed so that the head impact does not exceed a HIC of 1,000 units. While the test conditions described for HIC are detailed and specific, it is the intent of the requirement that an adequate level of head injury protection be provided for passengers in a severe crash.

Because §§ 25.562 and 25.785 and associated guidance do not adequately address seats with inflatable lapbelts, the FAA recognizes that appropriate pass/fail criteria need to be developed that do fully address the safety concerns specific to occupants of these seats.

Inflatable lapbelts have two potential advantages over other means of head-impact protection. First, they can provide significantly greater protection than energy-absorbing pads, and, second, they can provide essentially equivalent protection for all occupants, regardless of stature. These are significant advantages from a safety standpoint, because inflatable lapbelts will likely provide a level of safety that exceeds the minimum standards of the Code of Federal Regulations. Conversely, inflatable lapbelts in general are active systems and must be relied upon to activate properly when needed, as opposed to energy-absorbing pads or upper torso restraints that are passive and always available. Therefore, the potential advantages must be balanced against this and other potential disadvantages to develop standards for this design feature.

While the automotive industry has extensive experience demonstrating the benefits of using inflatable airbags, the airplane environment presents unique and additional challenges. From the standpoint of a passenger safety system, inflatable lapbelts are unique in that they are both active and entirely autonomous devices. In automobiles, airbags are a supplemental system and work in conjunction with upper torso restraints. In airplanes, inflatable lapbelts are the sole means of injury protection for occupants, i.e., they are not used in conjunction with additional restraints. In addition, automobile crash events have more definable beginnings and ends, and they do not typically last as long as aviation crash events, which can simplify the activation logic.

The airplane-operating environment is also quite different from that of automobiles in terms of both the interior design and the exterior environment in which the airplane operates. Airplane cabin furnishings potentially receive greater wear and tear and unanticipated abuse conditions (for example, because of galley loading and damage from passenger baggage). Airplanes also operate at altitudes where exposure to high-intensity radiomagnetic fields (HIRF) could affect the lapbelts' activation system.

The FAA considers inflatable lapbelts to have two primary safety concerns: first, that they perform properly under foreseeable operating conditions, and second, that they do not perform (i.e., activate) in a manner or at times that would result in a hazard to the airplane or occupants. This latter point has the potential to be the more rigorous of the requirements, owing to the active nature of the system. The discussion below addresses how these special conditions address the specific issues raised by these two general concerns.

Under the provisions of § 21.101 Boeing must show that the Model 717-200 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A6WE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A6WE are as follows: part 25 of the Federal Aviation Regulations as amended by Amendments 25-1 through 25-82, except where superseded. The U.S. type certification basis for the Model 717-200 series airplanes is established in accordance with 14 CFR 21.29 and 21.17 and the type certification application date. The U.S. type certification basis is listed in Type Certificate No. A6WE.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 717-200 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model.

In addition to the applicable airworthiness regulations and special conditions, the Model 717-200 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

The Boeing Model 717-200 series airplanes will incorporate the following novel or unusual design features: inflatable lapbelts on certain seats of the Model 717-200 series airplanes to reduce the potential for head injury in the event of an accident. Inflatable lapbelts work similarly to automotive airbags, except the airbags are integrated with the lapbelts of the restraint system.

The CFR states the performance criteria for head injury protection in objective terms. However, none of these criteria are adequate to address the specific issues raised concerning seats with inflatable lapbelts. The FAA has therefore determined that, in addition to the requirements of part 25, special conditions are needed to address requirements particular to installation of seats with inflatable lapbelts.

Accordingly, in addition to the passenger injury criteria specified in § 25.785, these special conditions are proposed for the Boeing Model 717-200 series airplanes equipped with inflatable lapbelts. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil aviation authorities.

The FAA considers inflatable lapbelts to have two primary safety concerns: first, that they perform properly under foreseeable operating conditions, and second, that they do not perform (i.e., activate) in a manner or at times that would result in a hazard to the airplane or occupants.

Inflatable lapbelts should be effective for a wide range of occupants. The FAA has historically considered the range from the fifth percentile female to the ninety-fifth percentile male as the range of occupants that must be taken into account. In this case, the FAA is proposing consideration of a broader range of occupants, due to the nature of the lapbelt installation and its close proximity to the occupant. In a similar vein, these persons could have assumed the brace position for accidents in which an impact is anticipated. Test data indicate that occupants in the brace position do not require supplemental protection, and so it would not be necessary to show that inflatable lapbelts will enhance the brace position. However, the inflatable lapbelts must not introduce any hazards when they deploy into seated, braced occupants.

Another area of concern is children in these seats whether lap-held, in approved child safety seats, or occupying the seat directly. Although specifically prohibited by the FAA operating regulations, the use of the supplementary loop belt (“belly belt”) may be required by other civil aviation authorities, and should also be considered with the end goal of meeting those regulations. Similarly, if the seat is occupied by a pregnant woman, the installation needs to address such usage, either by demonstrating that it will function properly, or by adding appropriate limitation on usage.

To be an effective safety system, inflatable lapbelts must function properly and must not introduce any additional hazards to occupants as a result of their functioning. There are several areas where inflatable lapbelts differ from traditional occupant protection systems and require special conditions to ensure adequate performance.

Inflatable lapbelts are essentially single-use devices. As a result, they could potentially deploy under crash conditions that are not sufficiently severe as to require head injury protection from the inflatable lapbelts. Since crashes are frequently composed of a series of impacts before the airplane comes to rest, if a larger impact follows the initial impact, the inflatable lapbelts could be rendered useless. Other safety devices such as energy absorbing pads or upper torso restraints tend to provide continuous protection regardless of severity or number of impacts in a crash event. Therefore, the inflatable lapbelts should provide protection when required and they should not expend their protection during a less severe impact. Also, it is possible to have several large impact events during the course of a crash, but there will be no requirement for the inflatable lapbelts to provide protection for multiple impacts.

Each occupant's restraint system is designed to provide protection for only that occupant. However, unoccupied seats that may have active lapbelts are also a concern. It will be necessary to show that the required protection is provided for each occupant, regardless of the number of occupied seats.

Since the inflatable lapbelts likely have a large volume displacement, the inflated bags could potentially impede egress of passengers. Since the bags deflate to absorb energy, it is likely that the inflatable lapbelts would be deflated at the time that persons would be trying to leave their seats. Nonetheless, it is appropriate to specify a time interval after which the inflatable lapbelts may not impede rapid egress. Ten seconds has been chosen as a reasonable time, since this corresponds to the maximum time allowed for an exit to be opened (in accordance with § 25.809). In actuality, it is unlikely that a flight attendant would be able to prepare an exit this quickly, especially in an accident that is severe enough to deploy the inflatable lapbelts. Furthermore, the inflatable lapbelts will likely deflate much more quickly than ten seconds.

It is even more critical that the inflatable lapbelts do not impede rapid egress in the emergency exit row seats. Section 25.813 clearly requires that there must be an unobstructed passageway from the main aisle to the exit and that there must be no interference in opening the exit. The restraint system must not impede access to and the opening of the exit. In some cases, such as a Type III over-wing hatch, a passenger is the one who will open the exit. These lapbelts should be evaluated in the exit row under existing regulations (§§ 25.809 and 25.813) and guidance material. The inflatable lapbelts must also be evaluated in post-crash conditions. They should be evaluated using representative restraint systems in the bag deployed condition.

This evaluation includes reviewing the access to and opening of the exit, specifically looking for obstructions in the egress path and any interference in opening the exit. Each unique interior configuration must be considered (e.g., passageway width and single, or dual passageways with the outboard seat removed). If restraints create any obstruction or interference, they could impede rapid egress. If these restraint systems are installed at exit door rows, it is likely that project-specific guidance will be necessary.

These special conditions include requirements to ensure that inflatable lapbelts operate in the aviation environment. These special conditions also incorporate requirements to ensure that the inflatable lapbelts are protected from HIRF and meet the requirements of § 25.1316. Existing regulations regarding lightning, § 25.1316, and the existing HIRF special condition for the Boeing Model 717-200 series aircraft, Special Conditions No. 25-ANM-60 (57 FR 34511, August 5, 1992), are also applicable.

Since inflatable lapbelts will be electrically powered, the system could possibly fail if the fuselage separates. Since this system is intended as crash/post-crash protection means, failure due to fuselage separation is not acceptable. As with emergency lighting, the system should function properly if such a separation occurs at any point in the fuselage. Inflatable lapbelts will rely on electronic sensors for signaling and pyrotechnic charges for activation so that they are available when needed.

Inflatable lapbelts could be susceptible to inadvertent activation, causing them to deploy in a potentially unsafe manner. The consequences of such deployment must be considered in establishing the reliability of the system. Therefore, Boeing must substantiate that if the lapbelts inadvertently deploy, they will not create a hazard to the airplane. If this cannot be substantiated, then Boeing must demonstrate that inadvertent deployment is an extremely improbable occurrence (i.e., less than 10−9 per flight hour). Also, if the lapbelts are inadvertently deployed, the effects on passengers or crew members who are standing or sitting close by should also be considered. A minimum reliability level will have to be established for this case, depending upon the consequences, even if the effect on the airplane is negligible.

In-service and outside environmental conditions could increase the potential for inadvertent activation. The cumulative effects of wear and tear must also be considered so that it does not increase the likelihood of an inadvertent deployment to an unacceptable level. To mitigate the effects of such cumulative damage, it is necessary to develop an appropriate inspection interval and self-test capability. Environmental conditions, such as lightning and HIRF, could potentially affect inflatable lapbelt systems. To demonstrate compliance in such conditions, it is first necessary to determine whether the lapbelts are critical or essential systems. If inadvertent deployment could cause a hazard to the airplane, inflatable lapbelts are considered a critical system; if inadvertent deployment could cause injuries to persons, the inflatable lapbelts are considered an essential system. Finally, the inflatable lapbelt installation should be protected from the effects of fire, so, for example, a rupture of the pyrotechnic squib does not create an additional hazard.

Special Conditions No. 25-187-SC (66 FR 52017, October 12, 2001) issued for the Boeing Model 777 series airplanes was the first special conditions to address flammability of the airbag material. The Boeing Model 717-200 series airplanes will use the similar airbag material in their inflatable lapbelts. During the development of inflatable lapbelts, the manufacturer was unable to develop a fabric that would meet the inflation requirements for the bag and the flammability requirements of part I(a)(1)(ii) of appendix F to part 25. The fabrics that were developed that meet the flammability requirement did not produce acceptable deployment characteristics. However, the manufacturer was able to develop a fabric that meets the less stringent flammability requirements of part I(a)(1)(iv) of appendix F to part 25 and has acceptable deployment characteristics.

Part I of appendix F to part 25 specifies the flammability requirements for interior materials and components. Appendix F does not explicitly reference inflatable restraint systems, because they did not exist when the flammability requirements were written. The existing requirements are based on both material types, as well as use, and have been specified in light of the state-of-the-art materials available to perform a given function. In the absence of a specific reference, the default requirement would be for the type of material used to construct the inflatable restraint, which is a fabric in this case. However, in issuing special conditions, the FAA must also consider the use of the material and whether the default requirement is appropriate. In this case, the specialized function of the inflatable restraints means that highly specialized materials are needed.

The standard normally applied to fabrics is a 12-second vertical ignition test. However, materials that meet this standard do not perform adequately as inflatable restraints. Since the safety benefits of the inflatable restraints are very significant, the flammability standard appropriate for these devices should not screen out suitable materials, thereby effectively eliminating use of inflatable restraints. The FAA will need to establish a balance between the safety benefit of the inflatable restraints and flammability performance. At this time, the 2.5-inch per minute horizontal test is considered to provide that balance. As materials standards and technology change (which is expected), the FAA may change this standard in subsequent special conditions to account for improved materials.

As discussed previously, the following special conditions can be characterized as addressing either the safety performance of the system or the system's integrity against inadvertent activation. Because a crash requiring use of the inflatable lapbelts is a relatively rare event, and because the consequences of an inadvertent activation are potentially quite severe, these latter requirements are probably the more rigorous from a design standpoint.

Finally, it should be noted that the special conditions are applicable to the inflatable lapbelt system as installed. The special conditions are not an installation approval. Therefore, while the special conditions relate to each such system installed, the overall type certificate or supplemental type certificate approval is a separate finding and must consider the combined effects of all such systems installed. For the reasons discussed above, these special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Model 717-200 series airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 717-200 series airplanes equipped with inflatable lapbelts.

1. Seats with Inflatable Lapbelts. It must be shown that the inflatable lapbelt will deploy and provide protection under crash conditions where it is necessary to prevent serious head injury. The means of protection must take into consideration a range of stature from a two-year-old child to a ninety-fifth percentile male. The inflatable lapbelt must provide a consistent approach to energy absorption throughout that range of occupants. In addition, the following situations must be considered:

a. The seat occupant is holding an infant.

b. The seat occupant is a child in a child restraint device.

c. The seat occupant is a child not using a child restraint device.

d. The seat occupant is a pregnant woman.

2. The inflatable lapbelt must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have active seatbelts.

3. The design must prevent the inflatable lapbelt from being either incorrectly buckled or incorrectly installed such that the inflatable lapbelt would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant, and will provide the required head injury protection.

4. It must be shown that the inflatable lapbelt system is not susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), and other operating and environmental conditions (vibrations, moisture, etc.) likely to be experienced in service.

5. Deployment of the inflatable lapbelt must not introduce injury mechanisms to the seated occupant, or result in injuries that could impede rapid egress. This assessment should include an occupant who is in the brace position when it deploys and an occupant whose belt is loosely fastened.

6. It must be shown that inadvertent deployment of the inflatable lapbelt, during the most critical part of the flight, will either not cause a hazard to the airplane or its occupants, or it meets the requirement of § 25.1309(b).

7. It must be shown that the inflatable lapbelt will not impede rapid egress of occupants 10 seconds after its deployment.

8. The system must be protected from lightning and high intensity radiomagnetic fields (HIRF). The threats specified in existing regulations regarding lightning, § 25.1316, and existing HIRF special conditions for the Boeing Model 717-200 series airplanes, Special Conditions No. 25-ANM-60, are incorporated by reference for the purpose of measuring lightning and HIRF protection.

9. Inflatable lapbelts, once deployed, must not adversely affect the emergency lighting system (e.g., block proximity lights to the extent that the lights no longer meet their intended function).

10. The inflatable lapbelt must function properly after loss of normal aircraft electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the lapbelt does not have to be considered.

11. It must be shown that the inflatable lapbelt will not release hazardous quantities of gas or particulate matter into the cabin.

12. The inflatable lapbelt installation must be protected from the effects of fire such that no hazard to occupants will result.

13. There must be a means for a crew member to verify the integrity of the inflatable lapbelt activation system prior to each flight, or it must be demonstrated to reliably operate between inspection intervals. The FAA considers the loss of the airbag system deployment function alone (i.e., independent of the conditional event that requires the airbag system deployment) to be a major failure condition.

14. The inflatable material may not have an average burn rate of greater than 2.5 inches/minute when tested using the horizontal flammability test as defined in 14 CFR part 25, appendix F, part I, paragraph (b)(5).

We have received reports of several instances of severe vibration and wing/aileron oscillation due to lack of sufficient flutter margin with winglets installed. This condition, if not corrected, could cause structural damage or lead to divergent flutter, and result in loss of integrity of the wing, loss of control of the airplane, and in-flight breakup.

We reviewed Aviation Partners Service Bulletin SBH-13-001, Revision A, dated May 3, 2013. The service information describes procedures for revising the Limitations section of the AFM to include an altitude restriction, and installing placards on the instrument panel.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires accomplishing the actions specified in the service information described previously.

We consider this AD interim action. Aviation Partners Inc. is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking. The modification is expected to remove the altitude restriction.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because severe vibration and wing/aileron oscillations could cause structural damage or lead to divergent flutter, and result in loss of integrity of the wing, loss of control of the airplane, and in-flight breakup. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2013-0462 and Directorate Identifier 2013-NM-092-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 102 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 Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930. Specifically, the Coast Guard will enforce this safety zone between Mile Marker 296.1 to Mile Marker 296.7 on all waters of the Chicago Sanitary and Ship Canal. Enforcement will occur from 7 a.m. until 11 a.m. and 1 p.m. until 5 p.m. on each day of June 17 through June 21, 2013.

This enforcement action is necessary because the Captain of the Port, Lake Michigan has determined that the U.S. Army Corps of Engineers dispersal barriers performance testing poses risks to life and property. Because of these risks, it is necessary to control vessel movement during the operation to prevent injury and property loss.

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

Vessels that wish to transit through the safety zone may request permission from the Captain of the Port, Lake Michigan. Requests must be made in advance and approved by the Captain of the Port before transits will be authorized. Approvals will be granted on a case by case basis. The Captain of the Port may be contacted via U.S. Coast Guard Sector Lake Michigan on VHF channel 16.

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

The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930. Specifically, the Coast Guard will enforce this safety zone between Mile Marker 302.6 to Mile Marker 302.8 on all waters of the Chicago Sanitary and Ship Canal. Enforcement will occur from 7 a.m. until 11 a.m. and from 1 p.m. until 3 p.m. on June 18, 2013.

This enforcement action is necessary to mitigate the risks associated with the USGS dive operations in the Chicago Sanitary and Ship Canal on June 18, 2013. The Captain of the Port, Lake Michigan has determined that conducting dive operations in a waterway with expected vessel traffic poses significant risks to life and property. Because of these risks, it is necessary to restrict vessel movement during the operation to prevent injury and property loss.

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

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

VA published a proposed rule in the Federal Register on May 26, 2011 (76 FR 30598), which, among other things, revised 38 CFR 17.1005. These revisions eliminated certain exclusions from emergency care payment or reimbursement, and defined the payment limitations for those qualifying for payment or reimbursement under the law as amended by Public Law 111-137, enacted on February 1, 2010. In the proposed rule we stated that § 17.1005 would be amended by adding new paragraphs (c) and (d). However, before VA published a final rule based on that proposed rule, on December 21, 2011 (76 FR 79071), VA published an entirely separate final rule that added new paragraphs (c) and (d) to § 17.1005. Then, VA published a final rule on April 20, 2012 (77 FR 23615), where we acknowledged that VA had already added new paragraphs (c) and (d) to § 17.1005 (in the December 21, 2011, final rule) and, accordingly, renumbered the proposed § 17.1005(c) as new § 17.1005(e). However, in the final rule published on April 20, 2012, VA inadvertently failed to correct a cross-reference in the newly renumbered § 17.1005(e)(3), from (c)(2) (in the proposed rule) to the new (e)(2) (which should have been cited in the final rule). This document corrects that error by removing (c)(2) from § 17.1005(e)(3) and adding, in its place, (e)(2).

For the reasons set forth in the preamble, the Department of Veterans Affairs is correcting 38 CFR part 17 as follows:

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://www.ecfr.gov/cgi-bin/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-2012-0716 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 August 16, 2013. 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-2012-0716, 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 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.html.

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 Wednesday, November 7, 2012 (77 FR 66781) (FRL-9367-5), 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 2E8072) by Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR 180.566 be amended by establishing tolerances for residues of the insecticide fenpyroximate, (E)-1,1-dimethylethyl 4-[[[[(1,3-dimethyl-5-phenoxy-1H-pyrazol-4-yl)methylene]amino]oxy]methyl]benzoate and its Z-isomer, (Z)-1,1-dimethylethyl 4-[[[[(1,3-dimethyl-5-phenoxy-1H-pyrazol-4-yl)methylene]amino]oxy]methyl]benzoate in or on fruit, stone, group 12-12 at 2.0 ppm; fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 1.0 ppm; and vegetable, tuberous and corm, subgroup 1C at 0.1 ppm. That document referenced a summary of the petition prepared by Nichino America, Inc., 4550 New Linden Hill Rd., Wilmington, DE 19808, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

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 fenpyroximate including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fenpyroximate follows.

EPA has evaluated the available toxicity data and considered their 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.

Fenpyroximate was classified as having moderate acute oral and inhalation toxicity in rats. It exhibited low dermal acute toxicity and was neither a skin nor eye irritant. Fenpyroximate was a slight to moderate sensitizer by the maximization test method. Subchronic and chronic oral exposures to fenpyroximate resulted in overall systemic toxicity (no specific target organ/tissue was identified). The most sensitive species tested was the dog. The effects reported in the dog included slight bradycardia, deficits in food consumption, body weight, body-weight gain, and an increased incidence of emesis and diarrhea. Emaciation and torpor (sluggish inactivity) were reported in female dogs at lower dose levels than males. The highest dose tested in the dog resulted in first- and second-degree heart block, increased urea concentration, decreased glucose, and altered plasma electrolyte levels among other signs of toxicity. In subchronic and chronic studies with rats, the primary effect was decreased body-weight gain in both sexes with hematological changes (e.g., higher counts of red blood cells) at higher doses.

In a rat prenatal developmental toxicity study, a fenpyroximate dose level that marginally affected maternal body weight and food consumption also resulted in an increased litter incidence of increased thoracic ribs, indicating increased prenatal (qualitative) susceptibility. In the rabbits, there were no developmental effects reported at any of the dose levels tested. In the rat 2-generation reproductive toxicity study, there was no indication of increased prenatal or postnatal susceptibility; maternal toxicity (decreased body weight) and offspring toxicity (decreased lactational weight gain in both generations) occurred at the same dose. Reproductive parameters were not affected. Acute and subchronic neurotoxicity studies in the rat show no evidence that fenpyroximate specifically targets the nervous system. In the acute neurotoxicity study, neurotoxicity signs such as decreases in motor activity occurred in the presence of other effects including decreases in body weight and food consumption, and in the absence of neuropathology. Similar results were noted in a delayed acute neurotoxicity study in the hen where no effects (neurotoxic or otherwise) were reported. The results of the rat subchronic neurotoxicity study did not indicate any neurotoxicity-specific effects; deficits in body weight and food consumption were the main effects reported. Effects reported in a rat immunotoxicity study were limited to decreased body-weight gain, indicating the fenpyroximate does not directly target the immune system. There is no evidence of carcinogenic potential for fenpyroximate based on the results of carcinogenicity studies via the oral route in either the rats or mice resulting in the carcinogenicity classification of “not likely” to be carcinogenic to humans. Genotoxicity studies including mutagenicity did not demonstrate any genotoxic potential resulting from fenpyroximate exposure.

Specific information on the studies received and the nature of the adverse effects caused by fenpyroximate 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: “Fenpyroximate. Human-Health Risk Assessment for Proposed Section 3 Uses on Stone Fruits (Group 12-12), Tuberous and Corm Vegetables (Subgroup 1C), and Small Vine Climbing Fruits Except Kiwifruit (Subgroup 13-07F), dated May 8, 2013 at Appendix A”, p. 30 in docket ID number EPA-HQ-OPP-2012-0716-0003.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (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 fenpyroximate used for human risk assessment is discussed in Unit III. of the final rule published in the Federal Register of Wednesday, December 12, 2012 (77 FR 73945) (FRL-9360-3).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to fenpyroximate, EPA considered exposure under the petitioned-for tolerances as well as all existing fenpyroximate tolerances in 40 CFR 180.566. EPA assessed dietary exposures from fenpyroximate 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. Such effects were identified for fenpyroximate. In estimating acute dietary exposure, EPA used the Dietary Exposure Evaluation Model—Food Consumption Intake Database (DEEM-FCID, ver. 3.16), which incorporates consumption information from the U.S. Department of Agriculture (USDA) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA); 2003-2008. As to residue levels in food, EPA assumed 100 percent crop treated (PCT), tolerance-level residues for all commodities, DEEM (ver. 7.81) default processing factors for all commodities except for apple, pear, and grape juice; grape, raisin; orange, grapefruit, tangerine, lemon and lime juice; tomato paste and puree; and peppermint and spearmint oil. Chemical-specific data were used to calculate empirical processing factors for these commodities.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 2003-2008 NHANES/WWEIA. As to residue levels in food, EPA assumed 100 PCT, tolerance-level residues for all commodities, DEEM (ver. 7.81) default processing factors for all commodities except for apple, pear, and grape juice; grape, raisin; orange, grapefruit, tangerine, lemon and lime juice; tomato paste and puree; and peppermint and spearmint oil. Chemical-specific data were used to calculate empirical processing factors for these commodities.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that fenpyroximate 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 PCT information. EPA did not use anticipated residue or PCT information in the dietary assessment for fenpyroximate. Tolerance-level residues and/or 100 PCT 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 fenpyroximate in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of fenpyroximate. 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) model, the Screening Concentration in Ground Water (SCI-GROW) model, and a Provisional Cranberry Model, the Agency calculated conservative estimated drinking water concentrations (EDWCs) of fenpyroximate. Tier 1, EDWCs reflect exposure in drinking water to the residues of fenpyroximate and its isomer/degradate, its cis isomer M-1, and its carboxylic acid M-3, all of which are assumed to have similar toxicity.

For acute exposures, EDWCs are estimated to be 43 parts per billion (ppb) for surface water and 0.27 ppb for ground water.

For chronic exposures, EDWCs are estimated to be 8.6 ppb for surface water and 0.27 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 43 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 8.6 ppb was used to assess the contribution to drinking water.

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, termiticide, and flea and tick control on pets). Fenpyroximate is not registered for any specific use patterns that would result in residential exposure.

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 fenpyroximate to share a common mechanism of toxicity with any other substances, and fenpyroximate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that fenpyroximate 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 FQPA Safety Factor (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 is evidence of increased prenatal (qualitative) susceptibility in a rat prenatal developmental toxicity study. A dose level that marginally affected maternal body weight and food consumption also resulted in an increased litter incidence of increased thoracic ribs. However, concern for prenatal and postnatal toxicity to fenpyroximate is low because:

i. There was a clear NOAEL in the rat prenatal developmental toxicity study;

ii. The NOAEL for this developmental study is being used as POD for the acute dietary risk assessment for the population of concern-females 13-49 years old;

iii. In the rabbit, there were no developmental effects reported at the levels tested; and

iv. In the rat 2-generation reproductive toxicity study, there was no indication of increased prenatal or postnatal susceptibility.

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 for all exposure scenarios. That decision is based on the following findings:

i. The toxicity database for fenpyroximate is complete.

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

iii. There is evidence that fenpyroximate results in increased susceptibility in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study. Increased (qualitative) prenatal susceptibility was seen following oral exposures in the rat developmental toxicity study, but the concern for these effects is low, for the reasons noted in Unit III.D.2. Therefore, a 10X FQPA safety factor is not necessary to account for this increased susceptibility of infants and children.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessment utilizes tolerance-level residues (established or recommended) and 100 PCT for all proposed/established commodities. By using these assumptions, the acute and chronic exposures/risks will not be underestimated. The dietary drinking water assessment utilizes water concentration values generated by models and associated modeling parameters, which are designed to provide conservative, health-protective, high-end estimates of water concentrations that will not likely be exceeded. There are no registered or proposed residential uses. These assessments will not underestimate the exposure and risks posed by fenpyroximate.

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. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to fenpyroximate will occupy 13% of the aPAD for females 13-49 years old and 6.2% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to fenpyroximate from food and water will utilize 15% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. There are no residential uses for fenpyroximate.

3. Short- and intermediate-term risks. Short-, and intermediate-term aggregate exposure takes into account short-, and intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Short-, and intermediate-term adverse effects were identified; however, fenpyroximate is not registered for any use patterns that would result in short-, and intermediate-term residential exposures. Therefore, no further assessment of short-, and intermediate-term risks is necessary. EPA relies on the chronic dietary risk assessment for evaluating short-, and intermediate-term risks for fenpyroximate.

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

5. 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 fenpyroximate residues.

Adequate enforcement methodology (gas chromatography method with nitrogen/phosphorus detection (GC/NPD), Method S19) is available to enforce the tolerance expression. Method S19 has passed an Agency validation and has a limit of quantitation (LOQ) of 0.05 ppm for the combined residues of fenpyroximate and M-1 in snap beans and avocados. A data-gathering liquid chromatography/mass spectroscopy/mass spectroscopy (LC/MS/MS) method is also available.

These methods 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.

Codex MRLs are established for residues of fenpyroximate per se in grapes (fresh and dried). Harmonization with the Codex MRLs is not possible because the U.S. tolerance expression includes an additional isomer and the U.S. use pattern requires a higher numerical value.

As EPA explained in its latest crop group rulemaking (77 FR 50617, August 22, 2012), EPA will attempt to conform petitions seeking tolerances for crop groups to the newer established crop groups, rather than establish new tolerances under the pre-existing crop groups, as part of its effort to eventually convert tolerances for any pre-existing crop group to tolerances with coverage under the revised crop group. Therefore, although the petitioner requested tolerances for “Fruit, stone, group 12”, EPA evaluated and is establishing tolerances for the crop group “Fruit, stone, group 12-12.”

Lastly, the Agency is removing the entry for “grape” from the table at 40 CFR 180.566 (a)(1) since the tolerance for “Fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F” at 1.0 ppm established by this action will subsume the existing tolerance.

Therefore, tolerances are established for residues the insecticide fenpyroximate, including its metabolites and degradates, in or on the commodities Fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 1.0 ppm; Fruit, stone, group 12-12 at 2.0; and Vegetable, tuberous and corm, subgroup 1C at 0.10 ppm.

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:

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

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

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

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

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

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

Accordingly, 44 CFR part 67 is amended as follows:

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

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

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

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

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

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

Accordingly, 44 CFR part 67 is amended as follows:

DoD published an interim rule in the Federal Register at 77 FR 30361 on May 22, 2012, to implement requirements of the Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Defense Trade Cooperation (the U.S.-U.K. DTC Treaty) and the Security Cooperation Act of 2010 regarding export control regulations between the United States and the United Kingdom. The public comment period ended on July 23, 2012. Two respondents submitted comments.

The Treaty Between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation (the U.S.-Australia DTC Treaty) was approved by Congress simultaneously with the U.S.-U.K. DTC Treaty in Title I of the Security Trade Cooperation Act of 2010. The Department of State implementing regulation was published in the Federal Register on April 11, 2013, at 78 FR 21523, effective when the U.S.-Australia DTC Treaty entered into force on May 16, 2013. This final rule also implements the U.S.-Australia DTC Treaty, the associated Implementing Arrangement, and the Department of State implementing regulations, which all have provisions that generally parallel the provisions of the U.S.-U.K. DTC Treaty and its implementing arrangements and regulations.

This rule streamlines the export control regulations between the United States and Australia and the United States and the United Kingdom under specified circumstances.

The U.S. Government controls exports of defense articles, technical data, and defense services. The governing law is the Arms Export Control Act (22 U.S.C. 2778 et seq.) and implementing regulations in the International Traffic in Arms Regulations (ITAR) (22 CFR 120-130).

Under the ITAR, the Department of State manages an export licensing system in which numerous government approvals are often necessary for companies to hold discussions about potential projects, pursue joint activities, ship hardware, or transfer know-how to one another, and even sometimes to transfer engineers and other company employees from one country to another. This process can be challenging and time consuming for U.S. exporters and for foreign firms in their supply chains.

The U.S. concluded the DTC Treaties with Australia and the United Kingdom to enable their militaries, security authorities, and their approved industries to exchange defense articles, technical information, and defense services more freely. The DTC Treaties establish certain exemptions from ITAR requirements. Other exports and transfers remain governed by the Arms Export Control Act and the ITAR.

The DTC Treaties, Implementing Arrangements, and other useful resources may be accessed at http://pmddtc.state.gov/treaties/index.html.

The implementing legislation is in Title I of Pub. L. 111-266, the Security Cooperation Act of 2010.

The U.S. Department of State regulations implementing the Treaties with Australia and the United Kingdom are at 22 CFR parts 120 and 126.

DoD reviewed the public comments in the development of the final rule. DoD responses are applicable to both treaties. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:

The final rule has added implementation of the U.S.-Australia DTC Treaty, the associated Implementing Arrangement, and the Department of State implementing regulations, comparable to the implementation of the U.S.-U.K. DTC Treaty.

Comment: Both respondents support the Defense Cooperation Treaty with the United Kingdom and the intent to facilitate trade by streamlining the export of defense articles. One respondent commended the Defense Acquisition Regulations (DAR) Council on recognizing the importance of the implementation of the U.S.-U.K DTC Treaty. The respondent also commended the DAR Council on designating portions of the solicitations that are (or are not) subject to the Treaty. This provides offerors with a common understanding of the export control requirements of a particular acquisition. Second, the respondent views the interim rule as heightening awareness of export controls.

Response: Noted.

Comment: The same respondent, however, was of the opinion that DoD does not have legal authority to make de facto jurisdictional determinations regarding whether a particular product is a U.S. DoD Treaty-eligible requirement. According to the respondent, contractors do have the right to self-classify, but the only Government entity that can make a definitive determination is the Department of State, Directorate of Defense Trade Controls. The respondent recommended that the final rule establish a process for program managers and contracting officers to coordinate with the Directorate of Defense Trade Controls with respect to determinations regarding solicitations and contract line items that would be suitable for U.S.-U.K. DTC Treaty treatment, so that companies can rely on the determination.

Response: DoD and the U.K. Ministry of Defence have jointly established a Management Board to resolve such issues, adopted a detailed management plan, and conducted Pathfinder Exercises to test the process with industry participants.

DoD slightly revised the wording of the final rule at DFARS 225.7902-4 to address the concern that the program manager and contracting officer do not have the authority to determine Treaty eligibility.

Comment: One respondent questioned the need for the representation, because a failure to comply with the ITAR provides an independent basis for regulatory enforcement against an offending contractor by the Department of State or the Department of Justice, and neither the Treaty nor the ITAR suggest the need for additional representations or certifications.

Another respondent recommended changing the contractor's representation in the provision at 252.225-7046, which requires the offeror to check one of two boxes (that exports or transfers were made and complied with the Treaty, or no such exports or transfers were made) to a more general statement requiring the contractor to acknowledge the contractor's obligation to comply with all treaty provisions. The respondent's rationale for this change was that large DoD contractors with separate departments responsible for Government contracting and ITAR compliance will need to establish complex procedures to gather the necessary data to support an affirmative or negative representation.

Response: DoD has retained the representation in the final rule without change. The clause at DFARS 252.225-7047, Exports by Approved Community Members in Performance of the Contract, applies only to performance after contract award. The provision at DFARS 252.225-7046, Exports by Approved Community Members in Response to the Solicitation, including the representation, is necessary in order to ensure compliance by offerors prior to contract award.

It is not apparent how an offeror could accurately respond to the representation that it has complied with all Treaty provisions, as proposed by the respondent, without gathering an equal amount of data as that required by the representation in the interim rule, to know whether any exports or transfers of qualifying defense articles were made, and that any such exports or transfers were made in accordance with the Treaty.

1. The final rule uses the correct full title of the Treaty at 225.7900(b) and then refers to the Treaty as “the U.S.-U.K. DTC Treaty,” in order to more specifically identify the Treaty and to distinguish it from the U.S.-Australia DTC Treaty.

2. The final rule reflects changes in the wording of the clauses 252.225-7046 and 252.225-7047 to use the term “Treaty-eligible” and “not Treaty-eligible” consistently in the rule, in order to avoid possible confusion that introduction of the term “exemption” invited.

3. DFARS 225.79, Export Control, and the associated clause at DFARS 252.204-7008, Export-Controlled Items, are moved to DFARS 225.7901 and 252.225-7048, respectively, to co-locate related coverage on export control in one subpart. A conforming change was made to DFARS 235.071.

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

DoD does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule does not impose burdens on small businesses. Small businesses that are exporters will benefit from being able to use the streamlined treaty process to make exports that are associated with responding to DoD solicitations and performance of DoD contracts. However, a final regulatory flexibility analysis has been performed and is summarized as follows:

This rule implements requirements of—

The Treaty Between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation (U.S.-Australia DTC Treaty); and

The Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Defense Trade Cooperation (the U.S.-U.K. DTC Treaty).

The objective of the rule is to streamlines the export control regulations between the United States and Australia and between the United States and the United Kingdom under specified circumstances. The legal basis for the rule is the Security Cooperation Act of 2010 (Pub. L. 111-266), enacted October 8, 2010.

There were no significant issues raised by the public in response to the initial regulatory flexibility analysis. The Chief Counsel for Advocacy of the Small Business Administration did not file any comments in response to the rule.

The great majority of industry members of the Approved Community are not small businesses due to the specialized knowledge of export control regulations and the cost involved in compliance. Small businesses that are exporters will benefit from being able to use the streamlined treaty process to make exports that are associated with responding to DoD solicitations and performance of DoD contracts.

Although the interim rule added a representation that required the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq., the net effect will be to significantly streamline and reduce paperwork requirements under the systems set forth in the DTC Treaties and regulated by the ITAR by no longer requiring individual export control licenses within the Approved Community. In short, one representation per offeror will replace multiple requirements under the present system.

This rule implements Treaties and statute and DoD is not aware of any alternative methods of achieving the objectives of the rule. Furthermore, the net impact of the rule is expected to be beneficial to small businesses.

The rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). OMB has cleared this information collection requirement under OMB Control Number 0704-0488, titled: Defense Trade Cooperation Treaty with the United Kingdom.

The annual reporting burden is estimated as follows:

Respondents: 110.

Responses per respondent: 1.

Total annual responses: 110.

Preparation hours per response: 0.1.

Total response burden hours: 11.

This rule will result in a significantly streamlined process and reduced paperwork requirements overall under the processes set forth in the DTC Treaties as implemented by the ITAR by no longer requiring individual export licenses within the Approved Community. In short, one representation per offeror will streamline the current process.

Therefore, DoD amends 48 CFR parts 204, 225, 235, and 252 as follows:

This final rule amends the DFARS to insert a PGI pointer at Subpart 222.7404(c).

Therefore, 48 CFR part 222 is amended as follows:

The snapper-grouper fishery of the South Atlantic is managed under the FMP and includes 60 species, 37 of which are addressed in Regulatory Amendment 13 and this final rule. These 37 snapper-grouper species do not have stock assessments; their acceptable biological catch estimates (ABCs) are greater than zero; and their ABCs were specified using a formula established in the Comprehensive ACL Amendment. Species in the fishery management unit with stock assessments and species with an ABC equal to zero are not addressed in Regulatory Amendment 13. For assessed species, adjustments to landings data will be made during assessment updates or revisions. Species with an ABC of zero are prohibited harvest species and are outside the scope of the amendment. The FMP was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.

On March 21, 2013, NMFS published a proposed rule for the regulatory amendment and requested public comments (78 FR 17336). The proposed rule and the regulatory amendment outline the rationale for the actions contained in this final rule. A summary of the actions implemented by this final rule are provided below.

The purpose of this rule and Regulatory Amendment 13 is to revise the ABCs, ACLs (including sector ACLs) and annual catch targets (ACTs) implemented by the South Atlantic Comprehensive ACL Amendment (77 FR 15916, March 16, 2012) using improved data. If the ABCs, ACLs (including sector ACLs), and ACTs are not updated using the new data, there could be a disconnect between how the ACLs were calculated and how the landings are calculated to determine if ACLs are met and AMs are triggered.

This final rule revises ACLs for the following species and species complexes: Deep-water complex species (yellowedge grouper, blueline tilefish, silk snapper, misty grouper, sand tilefish, queen snapper, black snapper, and blackfin snapper); shallow-water groupers (red hind, rock hind, yellowmouth grouper, yellowfin grouper, coney, and graysby); snappers (gray snapper, lane snapper, cubera snapper, dog snapper, and mahogany snapper), jacks (almaco jack, banded rudderfish, and lesser amberjack), grunts (white grunt, sailor's choice, tomtate, and margate); porgies (jolthead porgy, knobbed porgy, saucereye porgy, scup, and whitebone porgy); Atlantic spadefish; blue runner; bar jack; gray triggerfish; scamp; and hogfish. NMFS monitors landings throughout a fishing season to ensure they do not exceed the ACLs. Because the ACLs trigger the AMs that were established in the Comprehensive ACL Amendment it is important that data used to calculate the ACLs is consistent with the data used to monitor landings.

The commercial AMs for the species and species complexes in this final rule specify that if the commercial ACL for a species or species complex is reached or projected to be reached during a fishing year, the sector will close for the remainder of that fishing year for that species or species complex. If a complex is closed, sale and purchase of any species in that complex is prohibited. If a species, or a single member of a species complex, is designated as overfished and the commercial ACL is exceeded, then during the following fishing year the commercial sector ACL would be reduced by the amount of the commercial ACL overage in the prior fishing year.

The recreational AMs for the species and species complexes are as follows: If the recreational ACL is exceeded for a species or species complex in a fishing year, then during the next fishing year the NMFS Regional Administrator will monitor the recreational landings for a persistence in increased landings, and will reduce the length of the recreational fishing season as necessary to ensure the recreational landings do not exceed the recreational ACL.

This final rule ensures that the methodology used to calculate the ACLs is consistent with the methodology used to monitor landings and to determine when it is necessary to trigger the AMs.

In addition to the ACL revisions in this final rule, Regulatory Amendment 13 revises the ABCs and ACTs for these 37 snapper-grouper species using the improved data methods as previously described.

A total of 16 comment submissions were received on the proposed rule for Regulatory Amendment 13. Comments were received from individuals, an environmental organization, a recreational fishing association, and a Federal agency. Of the comments received, some were generally opposed to any regulations, and others were supportive of the action in the regulatory amendment. There were also comments outside the scope of this rulemaking. Several of those questioned the species groupings and the formula used to establish the ACLs, which were actions included in the South Atlantic Comprehensive ACL Amendment and are not reconsidered in Regulatory Amendment 13. Specific comments related to the actions contained in Regulatory Amendment 13 and NMFS' responses are summarized below.

Comment 1: NMFS states in Regulatory Amendment 13 that the “best scientific information available” is used. Provide the legal definition of the term “best scientific information available” and the timeline for the revision of National Standard 2.

Response: National Standard 2 requires that “conservation and management measures shall be based upon the best scientific information available,” 16 U.S.C. 1851(a)(2). The Magnuson-Stevens Act does not define the phrase “best scientific information available” but NMFS has published National Standard 2 guidelines to provide guidance on how this phrase should be interpreted in the development of fishery management actions. See 50 CFR 600.315. On December 9, 2009, NMFS published a proposed rule that would revise the National Standard 2 Guidelines (74 FR 65724). NMFS is reviewing the comments received on the proposed rule and expects to publish a final rule in the near future.

Comment 2: Regulatory Amendment 13 results in allocations that favor the recreational sector more than the commercial sector.

Response: NMFS disagrees. Sector allocations were established by a formula selected by the Council in the Comprehensive ACL Amendment in 2012. Regulatory Amendment 13 did not consider modifications to the allocation formula but uses updated data, including MRIP data, to revise the ABCs, ACLs, and ACTs for 37 snapper-grouper species. The use of updated data changes the percentage of allocations for these species but as shown in Table 2.2 of Regulatory Amendment 13, the differences are generally small and do not favor one sector over the other.

On April 17, 2013, NMFS published in the Federal Register an interim final rule to reorganize the regulations in 50 CFR part 622 for the Gulf of Mexico, the South Atlantic, and the Caribbean (78 FR 22950). That interim final rule did not create any new rights or obligations; it reorganized the existing regulatory requirements in the Code of Federal Regulations into a new format. This final rule incorporates this new format into the regulatory text; it does not change the specific regulatory requirements that were contained in the proposed rule. Therefore, as a result of this reorganization, the ACLs previously located at § 622.49 are now located at § 622.193.

The Regional Administrator, Southeast Region, NMFS has determined that the actions contained in this final rule and regulatory amendment are necessary for the conservation and management of the snapper-grouper fishery and are consistent with the Magnuson-Stevens Act and other applicable laws.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule and is not repeated here. No comments were received regarding the certification and NMFS has not received any new information that would affect its determination. No changes to the final rule were made in response to public comments. As a result, a regulatory flexibility analysis was not required and none was prepared.

For the reasons set out in the preamble, 50 CFR Part 622 is amended as follows:

NMFS issues this rule under authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. During public meetings each year, the estimated biomass for Pacific sardine is presented by NMFS scientists to the Pacific Fishery Management Council's (Council) Coastal Pelagic Species (CPS) Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel), and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fisheries are reviewed and discussed. The biomass estimate is then presented to the Council along with the calculated overfishing limit (OFL), available biological catch (ABC), annual catch limit (ACL) and harvest guideline (HG), along with recommendations and comments from the Team, Subpanel, and SSC. Following review by the Council and after hearing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to the National Marine Fisheries Service (NMFS).

After review of the Council's recommendations and public comments, NMFS implements through this rule the 2013 ACL, HG, and other annual catch references, including the OFL and an ABC that takes into consideration uncertainty surrounding the current estimate of biomass for Pacific sardine in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific sardine fishery based on the annual specification framework in the FMP. This framework includes a harvest control rule that determines the maximum HG, the primary management target for the fishery, for the current fishing season. The HG is based, in large part, on the current estimate of stock biomass. The harvest control rule in the CPS FMP is HG = [(Biomass−CUTOFF) * FRACTION * DISTRIBUTION] with the parameters described as follows:

1. Biomass. The estimated stock biomass of Pacific sardine age one and above for the 2013 management season is 659,539 mt.

2. CUTOFF. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 150,000 mt.

3. DISTRIBUTION. The average portion of the Pacific sardine biomass estimated in the EEZ off the Pacific coast is 87 percent.

4. FRACTION. The harvest fraction is the percentage of the biomass above 150,000 mt that may be harvested.

At the November 2012 Council meeting, the Council adopted the 2013 Stock Assessment of the Pacific sardine resource completed by NMFS Southwest Fisheries Science Center and the resulting Pacific sardine biomass estimate of 659,539 mt. Based on the framework in the CPS FMP and recommendations from its SSC and other advisory bodies, the Council recommended and NMFS is implementing, an OFL of 103,284 mt, ABC of 94,281 mt, an ACL of 94,281 mt (equal to the ABC) and a maximum HG (HGs under the CPS FMP are operationally similar to annual catch targets (ACT)) of 66,495 metric tons (mt) for the 2013 Pacific sardine fishing year. Due to an approximately 33 percent decrease in the biomass estimate from 2012, the result of the HG formula is approximately 40,000 mt less than the 2012 HG. As described above, annual biomass estimates are a parameter of the various harvest control rules, therefore as estimated biomass decreases or increases from one year to the next, the resulting allowable catch levels, such as the HG, will necessarily decrease or increase too. These catch specifications are based on the most recent stock assessment and the control rules established in the CPS FMP.

The Council also recommended, and NMFS is implementing, a reduced initial overall commercial fishing HG of 57,495 mt allocated across the three allocation periods for sardine management. This number has been reduced from the maximum HG of 66,495 mt by 9,000 mt: (i) For potential harvest by the Quinault Indian Nation of up to 6,000 mt; and (ii) 3,000 mt, which is initially reserved for potential use under an exempted fishing permit(s) (EFPs). The Council also recommended and NMFS is implementing that incidental catch set asides be put in place for each allocation period. The purpose of the incidental set-aside allotments and allowance of an incidental catch-only fishery is to allow for the restricted incidental landings of Pacific sardine in other fisheries, particularly other CPS fisheries, when a seasonal directed fishery is closed. The intent of this measure is to reduce of Pacific sardine in other CPS fisheries and allow for continued prosecution of these other important fisheries that may incidentally catch sardine if and when the sardine fishery is closed.

For the 2013 Pacific sardine fishing season, the incidental set asides and adjusted directed harvest levels for each period are shown in the following table in metric tons:

The 2013 HG is already well below the ACL, and additional inseason accountability measures are in place to ensure the actual catch levels never exceed the HG. If during any of the seasonal allocation periods the applicable directed harvest allocation is projected to be taken, fishing will be closed to directed harvest and only incidental harvest would be allowed. For the remainder of the period, any incidental Pacific sardine landings will be counted against that period's incidental set-aside. As an additional accountability measure, the incidental fishery will also be constrained to a 40 percent by weight incidental catch rate when Pacific sardine are landed with other CPS so as to minimize the targeting of Pacific sardine and reduce potential discard of sardine. In the event that an incidental set-aside is projected to be attained, the incidental fishery will be closed for the remainder of the period. If the set-aside is not fully attained or is exceeded in a given seasonal period, the directed harvest allocation in the following seasonal period will automatically be adjusted upward or downward accordingly to account for the discrepancy. Additionally, if during any seasonal period the directed harvest allocation is not fully attained or is exceeded, then the following period's directed harvest total will be adjusted to account for the discrepancy as well.

If the total HG or these apportionment levels for Pacific sardine are reached or are expected to be reached, the Pacific sardine fishery will be closed until it re-opens either the next period per the allocation scheme or at the beginning of the next fishing season. The NMFS Southwest Regional Administrator will publish a notice in the Federal Register announcing the date of any closure to either directed or incidental fishing. Additionally, to ensure that the regulated community is informed of any closure, NMFS will also make announcements through other means available, including fax, email, and mail to fishermen, processors, and state fishery management agencies.

At the March 2013 Council meeting, the Council approved and subsequently made a recommendation to NMFS to approve an EFP for all of the 3,000 mt EFP set-aside. NMFS will likely make a decision on whether to issue an EFP for Pacific sardine sometime prior to the start of the second seasonal period (July 1, 2013). Any set-aside attributed to an EFP designed to be conducted during the closed fishing time in the second allocation period (prior to September 15), but not utilized, will roll into the third allocation period's directed fishery.

As explained in the proposed rule, 6,000 mt of the HG is being set aside for use by the Quinault Indian Nation. NMFS will consult with Quinault Department of Fisheries staff and Quinault Fisheries Policy representatives at the end of the second allocation period to determine whether any part of this set-aside is available for transfer into the non-tribal directed fishery.

Detailed information on the fishery and the stock assessment are found in the report “Assessment of the Pacific Sardine Resource in 2012 for U.S. Management in 2013” (see ADDRESSES).

On January 31, 2013, NMFS published a proposed rule for this action and solicited public comments (78 FR 6794). NMFS received multiple comments from one commenter regarding the Pacific sardine annual specifications.

Comment 1: The commenter requested that NMFS disapprove the proposed action because the annual catch limit, harvest guideline (HG), and associated reference points such as the OFL, do not reflect the best available science for setting catch levels and will result in catch levels that fail to prevent overfishing, fail to achieve optimum yield (OY), are detrimental to the sardine stock as well as sardine predators and that ecological factors were not considered during the process of developing these specifications. Specifically, the commenter states that the value used for the FMSY parameter in the OFL control rule for 2013 does not represent the best available information, questions the use of the mid-year biomass estimate from the stock assessment used to determine the 2013 catch levels, and suggests that the distribution parameter be revised because it does not reflect catch levels in Mexico and Canada. Additionally, the commenter questions the values used for the CUTOFF and FRACTION parameters of the HG control rule as well as the overfished criteria for Pacific sardine.

Response: The CPS FMP and its implementing regulations require NMFS to set an OFL, ABC, ACL and HG for the Pacific sardine fishery using the control rules set in the FMP. Reconsideration of the existing control rules and their parameters, as well as other aspects of Pacific sardine management such as overfished criteria, is beyond the scope of this rulemaking. However, in addition to responding to the comments about the 18% FMSY parameter used in the OFL control rule, the mid-year biomass estimate used for setting 2013 harvest levels (OFL, ABC/ACL and HG), for information purposes only, NMFS will respond to some aspects of the comments that are beyond the scope of this action, such the distribution parameter used in the three control rules.

Disapproving this action, as requested by the commenter because of their perceived conservation concerns (as explained above), would allow the fishery to take place without any HG or quota. The HG and seasonal allocations, along with the OFL and ABC, are the principal mechanisms for preventing overfishing of Pacific sardine and managing the fishery at a level that will achieve OY while allowing equitable access to all sectors of the fishery.

The commenter stated that the 2013 harvest levels do not achieve OY, do not prevent overfishing, and that ecological factors were not considered in the setting of the 2013 catch levels. With regard to OY, as described in the FMP, catch levels determined from the HG formula will result in OY. The 2013 HG (i.e., the directed fishing management target for the 2013 season) was determined using this HG formula. Directed commercial fishing is not allowed above this level and management measures are in place to prevent the fishery from exceeding it (i.e., in-season catch monitoring, in-season closures and incidental catch set-asides). As it relates to overfishing, the 2013 HG catch level is approximately 36,000 mt below the 2013 OFL, providing a large buffer against overfishing. This lower HG is the result of OY considerations, including ecological, and the management strategy in the CPS FMP that for 2013 establishes a catch level much lower than is needed to simply avoid overfishing or because of a risk of exceeding the ABC/ACL due to management uncertainty. These considerations and precautions are based on the environmentally driven dynamic nature of the Pacific sardine stock as well as its importance in the ecosystem as forage for other species. Additionally, the HG control rule explicitly protects the stock from approaching an overfished condition (while explicitly reducing fishing if biomass decreases) through the use of a 150,000 mt CUTOFF parameter (level at fishing is prohibited) that is three times that of the overfished level (50,000 mt). Although not the subject of this rulemaking, the commenter questions the values used for the CUTOFF parameter as well as the overfished level. NMFS notes that the use of a CUTOFF parameter is not a requirement of the MSA or National Standard Guidelines and it is a proactive and precautionary policy choice of the CPS FMP to have an explicit rebuilding mechanism built into the control rule. With regards to the overfished level, it represents the best available science and is the level that on average can be expected to rebuild the stock in ten years. Additionally, low biomass conditions for Pacific sardine may result from overfishing, unfavorable environmental conditions, or both acting in concert. Experience with CPS stocks around the world indicates that overfished/low biomass conditions usually occur when unfavorable environmental conditions and high fishing mortality rates occur at the same time. Management measures for sardine do not, however, depend on whether a low biomass condition was due to excess fishing or unfavorable environmental conditions, because reductions in fishing mortality are required in either case.

Furthermore, ecological factors such as the life-cycles, distributions, and population dynamics of the Pacific sardine, as well as their role as forage were considered and evaluated in developing the various control rules. Beyond the ecological factors used in the development of the control rules, other ecological information related to the annual management of CPS is presented to the Council through the annual CPS Stock Assessment and Fishery Evaluation which contains a chapter titled Ecosystem Considerations. In this chapter, information on climate and oceanographic conditions such as El Niño and the Pacific Decadal Oscillation are presented, as well as ecosystem trends and indicators relevant to CPS such as sea surface temperature, ocean productivity and copepod abundance. Additionally, NMFS also considered ecological information in its review of the 2013 Pacific sardine specifications through both the Environmental Assessment (EA) and the Essential Fish Habitat consultation. The EA analyzed the effects of the proposed action on the environment, which included an examination of available ecosystem and predator/prey modeling efforts. NMFS is unaware of any additional ecological factors that warranted changes to the proposed 2013 Pacific sardine specifications.

Contrary to the opinion of the commenter, the 2013 Pacific sardine ACL, HG, and associated annual reference points are based on the best available science. As explained above under SUPPLEMENTARY INFORMATION, this year's biomass estimate used for the 2013 specifications went through extensive review, and along with the resulting OFL and ABC, was endorsed by the Council's SSC and NMFS as the best available science. As noted by the commenter, the SSC did recommend that future evaluations of the harvest control rules consider basing annual management on the biomass estimate from the stock assessment that aligns with at the start of the fishing year (currently management is based on the mid-year biomass estimate versus the end-year biomass from the stock assessment), however such a change has not been formally evaluated and the SSC did not recommend deviating from using the mid-year biomass estimate (which has been the practice for the last ten years) for management in 2013.

As it relates to the 2013 OFL, the commenter voiced concern with regard to the value (18 percent) used for the FMSY parameter in the OFL and ABC control rules. The value of the FMSY parameter used in the OFL and the ABC control rules is not prescribed in the FMP. The value used for 2013 of 18 percent represented the best available science and was endorsed by the SSC and NMFS. This value was also recommended as best available science for setting the 2012 annual specifications. Using 18% (the result of modeling work in 2011) was recommended for both 2012 and 2013 as an alternative to the default option of applying the temperature-stock relationship that is used for determining the FRACTION parameter due to uncertainty surrounding this relationship. The default option would have resulted in an FMSY of 19.85%. NMFS acknowledges that future work, particularly work involving sardine recruitment success and environmental variables, may provide alternative ways of estimating FMSY for these control rules, however a new approach would need to be analyzed and then reviewed by the SSC, the Council, and NMFS before it could be used in management.

In the three control rules, the U.S. catch levels for Pacific sardine are prorated by an “estimate of the portion of the stock resident in U.S. waters” using a “distribution parameter” of 87%. This approach is laid out in the FMP itself, and is intended to account for the fact that some level of the sardine stock exists outside of US waters and can therefore be subject to harvest by fisheries in neighboring countries. The 87% was chosen based on the best information available, and in light of the absence of an international agreement governing management of Pacific sardine off the West Coast. The commenter however, inappropriately conflates stock biomass distribution with catch distribution. The distribution parameter, as defined in the FMP, is an estimate of the long-term average of the portion of total stock biomass occurring in U.S. waters, and is simply a way to prorate the biomass estimate used to calculate U.S. catch levels, it is not a prescription of actual catch levels by fishing vessels of the U.S., Canada and Mexico in any given year.

As part of the rationale presented by the commenter as to why the current value of 87 percent for the DISTRIBUTION parameter is incorrect, the commenter points to sardine catch in Mexico and the fact that Mexico caught 51 percent of the total coastwide catch in 2011. The commenter states that because Mexico caught 51 percent of the total Pacific sardine catch that year, and this value exceeds 13 percent (the percent of total biomass assumed under the current default approach to occur outside U.S. waters), that the 87 percent biomass distribution used in the FMP is therefore incorrect. However, this rationale confuses the concepts of catch and biomass with other incorrect assumptions. For instance, the sardine control rules were not developed with the assumption that the entire sardine biomass is readily available to the U.S. fleet, that there are no other fishing restrictions, or that U.S. fishing restrictions match those of other countries. Obviously, these assumptions are not correct. For instance due to the seasonal allocation structure of the U.S. sardine HG and seasonal closures that occurred 2011 the U.S. fishery was only open for 83 days that year, while Mexico and Canada were not bound by this same restriction. The U.S. fishery is also bound by other restrictions such as limited entry and trip limits that likely reduce the total amount of sardines caught in U.S. waters. In fact, the U.S. only caught 34 percent of the total coastwide catch in 2011, which resulted in only a 5 percent stock exploitation rate by the U.S. Additionally, because of the migratory nature of the sardine stock and their movement between spawning grounds and feeding grounds, both of which change annually and seasonally, the biomass in any given year is not evenly distributed along the coast and therefore not equally available to any country or evenly distributed among specific fleet or port complexes within the U.S. Therefore, the 87% distribution parameter is not “incorrect” merely because it does not reflect catch levels between the three countries in any one year; it was neither intended to reflect catch levels nor keep total catches under a certain level as the commenter states.

Additionally, the commenter points to ongoing work by the NMFS Southwest Fisheries Science Center that is examining sardine stock structure along the west coast; along with potential ways to determine and differentiate the two subpopulations of Pacific sardine within landings in Southern California and Mexico. Although such research, as that referenced by the commenter, may eventually help distinguish the catch of the two sardine subpopulations, 87 percent still represents the best available science with regard to overall biomass distribution and is therefore appropriate for use in the sardine control rules.

NFMS recognizes that properly accounting for the trans-boundary nature of stocks, such as Pacific sardine, is difficult. The CPS FMP sets sardine harvest levels for U.S. fisheries by prorating the biomass used to calculate the target harvest level according to the portion of the stock estimated to be in U.S. waters on average over time. The primary advantage of prorating the total target harvest level is that U.S. fisheries can be managed unilaterally in a responsible manner that is consistent with the MSA. Although estimates of Mexican and Canadian landings are not considered explicitly in determining annual harvest levels for U.S. waters, landings and fishery data from both Mexico and Canada are used to assess the coastwide biomass. Therefore, because the allowable harvest level in U.S. waters ultimately depends on this biomass estimate, U.S. harvest will be reduced if the stock is depleted by fishing in either Mexico or Canada.

Finally, with regard to the commenter's concern that U.S. fishing levels exceed a combined United States, Mexico and Canada overfishing limit, this is unfounded because there is no such coastwise limit: Pacific sardine is not managed under an international agreement, and the FMP does not prescribe an international overfishing level. However, NMFS will continue to monitor the total exploitation status of the stock to assess whether the stock is becoming overfished. Additionally, recent years' exploitation rates have been relatively conservative and well below levels that are likely to cause the stock to become overfished. The total international exploitation rate on the stock has averaged approximately only 13 percent over the last 10 years and in 2011 was about 15 percent, with U.S. annual exploitation rates averaging 7 percent since 2000; the 2011 U.S. exploitation rate was about 5 percent. Beyond prorating the biomass to calculate U.S. harvest, the Council and NOAA might consider alternative ways of accounting for the transboundary nature of the stock in the future.

Additionally, because sardine is a variable stock that undergoes extended periods of low and high biomass even in the absence of fishing, to help ensure Pacific sardine is not overfished, under the FMP's harvest policy whether sardine biomass decreases as a result of fishing pressure or environmental conditions, harvest in U.S. waters will automatically decrease as well. Because of this precautionary feature of the harvest control rule, the approximately 33 percent decline in biomass from 2012 to 2013, has resulted in a 60 percent decrease in the 2013 HG compared to 2012.

Comment 2: The same commenter also stated that the Environmental Assessment (EA) prepared for this action was inadequate because it should have included a greater range of alternatives, and because alternative methods for determining the annual specifications should be analyzed in an Environment Impact Statement (EIS).

Response: This year's specifications fall within the analysis in the EIS prepared for the CPS FMP under the National Environmental Policy Act. The EA completed for this action demonstrates that the implementation of the 2013 catch levels for the Pacific sardine fishery based on the HG and ABC control rules in the FMP will not significantly impact the quality of the human environment. Therefore a new EIS is not necessary.

With regard to the scope and range of alternatives, the six alternatives analyzed in the EA was a reasonable number and covered an appropriate scope based on the limited nature of this action, which is described above. The six alternatives (including the proposed action) were objectively evaluated in recognition of the purpose and need of this action and the framework process in place based on the HG and ABC control rules for setting catch levels for Pacific sardine. The CPS FMP describes a specific framework process for annually setting required catch levels and reference points. Although there is some flexibility built into this process concerning determinations of scientific and management uncertainty, there is little discretion in the OFL control rules (level for determining overfishing), the ABC control rule (used to determine the ACL), or the HG control rule (level at which directed fishing is stopped), with the annual biomass estimate being the primary determinant in both these levels.

The Administrator, Southwest Region, NMFS, determined that this action is necessary for the conservation and management of the Pacific sardine fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule is exempt from review under Executive Order 12866.

The results of the Final Regulatory Flexibility Analysis (FRFA) completed for this action are below. For copies of the complete FRFA, please see the ADDRESSES section above. No issues were raised by public comments in response to the Initial Regulatory Flexibility Analysis (IRFA) prepared pursuant to the Regulatory Flexibility Act for this action or on the economic impacts of the rule generally. As well as stated below, a description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble.

The purpose of this action is to implement the 2013 annual specifications for Pacific sardine in the U.S. EEZ off the Pacific coast. The CPS FMP and its implementing regulations require NMFS to set an OFL, ABC, ACL and HG or ACT for the Pacific sardine fishery based on the specified harvest control rules in the FMP. A specific harvest control rule is applied to the current stock biomass estimate to derive the annual HG, which is used to manage the directed commercial take of Pacific sardine.

The HG is apportioned based on the following allocation scheme: 35 percent of the HG is allocated coastwide on January 1; 40 percent of the HG, plus any portion not harvested from the initial allocation is then reallocated coastwide on July 1; and on September 15 the remaining 25 percent, plus any portion not harvested from earlier allocations will be released. If the total HG or these apportionment levels for Pacific sardine are reached at any time, the Pacific sardine fishery will close until either it re-opens per the allocation scheme or the beginning of the next fishing season. There is no limit on the amount of catch that any single vessel can take during an allocation period or the year; the HG and seasonal allocations are available until fully utilized by the entire CPS fleet.

The U.S. Small Business Administration defines small businesses engaged in fishing as those vessels with annual revenues of or below $4 million. The small entities that would be affected by this action are the vessels that compose the West Coast CPS small purse seine fleet. In 2012 there were approximately 96 vessels permitted to operate in the directed sardine fishery component of the CPS fishery off the U.S. West Coast; 55 are vessels in the Federal CPS limited entry fishery off California (south of 39 N. lat.), and a combined 23 vessels in Oregon and Washington's state Pacific sardine fisheries. The annual per vessel revenue in 2012 for the West Coast CPS finfish fleet was well below $4 million and no vessels reported revenue of greater than $4 million; therefore, all of these vessels are considered small businesses under the RFA. Because each affected vessel is a small business, this action has an equal effect on all of these small entities, and there will not be any disproportionate impact on small entities.

The profitability of these vessels as a result of this action is based on the average Pacific sardine ex-vessel price per mt. NMFS used average Pacific sardine ex-vessel price per mt to conduct a profitability analysis because cost data for the harvesting operations of CPS finfish vessels was unavailable.

For the 2012 fishing year approximately 105,000 mt were available for harvest by the directed fishery. Approximately 95,000 mt (21,000 in California and 74,000 mt in Oregon and Washington) of this HG were harvested during the 2012 fishing season, for an estimated ex-vessel value of $20 million. Using these figures, the average 2012 ex-vessel price per mt of Pacific sardines was approximately $208.

The directed commercial fishing HG for the 2013 Pacific sardine fishing season (January 1, 2013 through December 31, 2013) is 57,495 (mt). This HG is approximately 47,000 mt less than the directed commercial fishing HG for 2012. If the fleet were to take the entire 2013 HG, and assuming a coastwide average ex-vessel price per mt of $204 (average of 2011 and 2012 ex-vessel), the potential revenue to the fleet would be approximately $12 million. Therefore, this action will decrease the affected small entities' potential profitability compared to last season, due to the lower HG this fishing season. However, although there will likely be a drop in profitability to sardine harvesting vessels based on this rule compared to last season, from 2007 through 2011 the average coastwide annual ex-vessel revenue was $12.5 million; therefore, at current ex-vessel price per mt, the HG for 2013 should provide similar revenue to the five years preceding 2012. Furthermore, as occurred in 2012, unused sardine from the potential EFP or the release of any unused portion of the 6,000-mt set-aside for the Quinault Indian Nation might be used to supplement the amount available to the directed fishery during the third allocation period (September 15 through December 31), thereby slightly increasing the potential revenue to the fleet.

Additionally, revenue derived from harvesting Pacific sardine is typically only one factor determining the overall revenue for a majority of the vessels that harvest Pacific sardine; as a result, the economic impact to the fleet from this action cannot be viewed in isolation. From year to year, depending on market conditions and availability of fish, most CPS/sardine vessels supplement their income by harvesting other species. Many vessels in California also harvest anchovy, mackerel, and in particular squid, making Pacific sardine only one component of a multi-species CPS fishery. For example, market squid have been readily available to the fishery in California over the last three years with total annual ex-vessel revenue averaging approximately $66 million over that time, compared to an annual average ex-vessel from sardine of $16 million over that same time period. Additionally, many sardine vessels that operate off of Oregon and Washington also fish for salmon in Alaska or squid in California during times of the year when sardine are not available.

These vessels typically rely on multiple species for profitability because abundance of sardine, like the other CPS stocks, is highly associated with ocean conditions and different times of the year, and therefore are harvested at various times and areas throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time; therefore, as abundance levels and markets fluctuate, it has necessitated that the CPS fishery as a whole rely on a group of species for its annual revenues. Therefore, although there will be a potential reduction in sardine revenue for the small entities affected by this action as compared to the previous season, it is difficult to predict exactly how this reduction will impact overall annual revenue for the fleet.

There are no significant alternatives to this action that would accomplish the objectives of the Magnuson-Stevens Act and would also minimize any significant economic impact of this action on the affected small entities. The CPS FMP and its implementing regulations require NMFS to set an annual HG for the Pacific sardine fishery based on the harvest formula in the FMP. The harvest formula is applied to the current stock biomass estimate to determine the HG. Therefore, if the estimated biomass decreases or increases from one year to the next, the HG will necessarily decrease or increase too. Because the current stock biomass estimate decreased from 2012 to 2013, the HG also decreased. Determining the annual HG merely implements the established procedures of the FMP with the goal of continuing to provide expected net benefits to the nation, regardless of what the specific allowable harvest of Pacific sardine is determined to be for 2013.

There are no reporting, record-keeping, or other compliance requirements required by this rule. Additionally, no other Federal rules duplicate, overlap, or conflict with this rule.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a notice to fishermen that also serves as a small entity compliance guide (guide) was prepared and will be distributed to fishermen and processors. The guide is also available on the internet at http://swr.nmfs.noaa.gov. Copies of this final rule and guide, i.e., the notice to fishermen, will be available upon request from the Southwest Regional Office (see ADDRESSES).

This final rule implements Amendment 42 to the FMP. NMFS published a notice of availability (NOA) for Amendment 42 on March 12, 2013 (78 FR 15677). The comment period on NOA for Amendment 42 ended on May 13, 2013. The Secretary approved Amendment 42 on June 5, 2013, after accounting for information from the public, and determining that Amendment 42 is consistent with the FMP, the MSA, and other applicable law. NMFS published a proposed rule to implement Amendment 42 on March 21, 2013 (78 FR 17341). The comment period on the proposed rule ended on April 22, 2013. NMFS received a total of 5 comment letters from 3 persons during the comment periods on Amendment 42 and the proposed rule to implement the amendment. The letters contained 18 separate topics. A summary of these comments and NMFS's responses are provided in the Comments and Responses section of this preamble.

Amendment 42 and this final rule apply to the CR Program's annual economic data collection program and the annual EDRs. At the beginning of the CR Program, the Council recommended and NMFS implemented a comprehensive economic data collection program. The CR Program requires participants to complete an annual EDR based on harvesting and processing activities for the associated fishing season. The Council and NMFS use the annual EDRs to assess the success of the CR Program and develop amendments to the FMP necessary to mitigate any unintended consequences of the CR Program. An annual EDR is currently required for four categories of participants in the CR Program fisheries: catcher vessels, catcher/processors, shoreside processors, and stationary floating processors. Data submission is mandatory.

The EDR Program is administered by NMFS through contracts with the Pacific States Marine Fisheries Commission (PSMFC). NMFS collects fees from CR Program participants to recover the costs of administering the EDR Program.

As described in the proposed rule to implement Amendment 42, the Council initiated an analysis in 2010 to modify the EDR based on its data quality review process and public comment received during the Council's 5-year review of the CR Program. In February 2012, the Council recommended Amendment 42 to the FMP to modify the EDR. Following the Council's recommendation of Amendment 42, additional industry outreach and Council review of the proposed EDR revisions ensured that the revisions were compatible with industry recordkeeping procedures and consistent with the intent of the Council recommendations. In October 2012, the Council reviewed three proposed EDR forms developed for this action and the draft Paperwork Reduction Act (PRA) submission. Following this review, the Council confirmed its support for Amendment 42.

The Council recommended Amendment 42 to address its concerns with accuracy and consistency of reported data, redundant data reporting, and reducing industry's reporting burden. Those concerns are discussed in detail in the proposed rule to implement Amendment 42 (78 FR 17341, March 21, 2013) and are briefly summarized here.

Data that is inconsistently or inaccurately reported is not useful to the Council or NMFS. For example, reporting labor information for each crab fishery, including average processing positions, does not provide an accurate estimate of the number of staff used, as staff may be reassigned to non-crab tasks with changing plant needs. Therefore, the Council recommended removing this data-reporting requirement, as inaccurately or inconsistently reported data has limited analytical use.

In addition to data quality limitations, several data elements removed from the EDR by this final rule are currently collected under other NMFS or State of Alaska data collection programs. For example, the requirement for catcher vessels to report their fishing activity, including fish ticket numbers, days fishing, and days transiting and offloading, by crab fishery are also collected by the State of Alaska and then shared with NMFS through a data sharing agreement. The Council and NMFS believe these data elements are useful for examining operational efficiencies; however, each of these data elements is individually available through other data collection sources.

Finally, the cost to industry, both directly through data submission and indirectly through cost recovery funding of program administration, exceeds the estimates of administering and complying with the EDR that NMFS provided in the initial RIR/IRFA of the CR Program (see ADDRESSES). NMFS' administrative costs associated with the current EDRs result from the production and distribution of data collection forms, processing completed forms, data entry, data verification, and data management. Annually, these costs are then “billed” to CR Program participants through the CR Program's cost recovery fee system.

For CR Program participants required to submit the EDRs, the amount of time needed to complete the current crab EDRs is higher than originally estimated when the EDR Program was developed. To complete an EDR form, CR Program participants are required to consult both annual fishing (i.e., days fishing, days traveling, and days processing) and financial (i.e., landings by share type, sales by species, and fuel costs) information, which are not often recorded in the same format. In the original PRA statement for the initial EDR Program, the estimates of time required to accurately complete each EDR was 7.5 hours per vessel. In 2012, during public testimony, the Council was advised that the time required to complete each of the current EDR forms was approximately 45 to 50 hours. The EDR modifications implemented by this rule will remove data elements that are already reported through other data collection programs. This will reduce the amount of information industry participants are required to report in each EDR and reduce the amount of time it takes to complete the EDRs.

NMFS received 5 letters of public comment from 3 individuals during the public comment periods for Amendment 42 and the proposed rule. A summary of the comments received and NMFS' responses follow.

Comment 1: The proposed rule is consistent with Amendment 42 as adopted by the Council. We urge the Secretary to adopt Amendment 42 to the FMP for the Bering Sea/Aleutian Islands King and Tanner crab as soon as legally permissible.

Response: NMFS acknowledges this comment.

Comment 2: The quality of data this agency works with is poor. The information is inaccurate and unrealistic.

Response: NMFS disagrees. This action ensures that EDRs collect the best data currently available. The purpose of Amendment 42 and this final rule is to address the current problems with the EDR Program so that the data collected is accurate and informative to the Council, not redundant with existing reporting requirements, and can be reported by industry and administered at a reasonable cost. Regulations implementing the EDR found at 50 CFR 680.6(f) also provide for verification of information to ensure that the data collected is error-free.

Comment 3: NMFS and the Council need to be more responsive to the MSA requirements for economic data collection and analysis and do a better job of explaining why meeting those requirements should be beneficial to the industry and the public.

Response: NMFS disagrees. NMFS and the Council both believe they have responded adequately to the MSA requirements for economic data collection. Section 313(j)(1) of the MSA required the Secretary to approve and implement the CR Program approved by the Council, which included a requirement to collect economic data. Under the CR Program, the EDR data will be used “to study the impacts of the crab rationalization program” and to ensure that the program will achieve “equity between the harvesting and processing sectors” and to monitor the “economic stability for harvesters, processors, and coastal communities”. The CR Program required by section 313(j)(1) of the MSA also provides specific guidance on the type of data to be collected, requirements for selecting a data collection agent, verification of data, and treatment and distribution of confidential data that are included in this collection.

The CR Program EDR provides information to aid the public at-large, industry, and decision makers in reviewing the impacts of the CR Program. NMFS has determined that this final rule is consistent with the MSA and other applicable law.

Comment 4: The proposed rule and Amendment 42 would substantially decrease the economic data that are available to the Council and NMFS.

Response: NMFS disagrees. NMFS acknowledges that this action will quantitatively reduce the number of reported data elements. However, NMFS has worked with the Council and industry to ensure that data that can be accurately, reliably, and consistently reported will be collected in this revised EDR. The Council and NMFS are eliminating particular data elements, which were determined to be inaccurate or inconsistently reported after a careful, comprehensive multi-year CR Program EDR review as described in detail in the preamble to the proposed rule (78 FR 17341, March 21, 2013) and the RIR/IRFA prepared for this action (see ADDRESSES). NMFS will continue to work with the Council and industry to collect the best information available.

Comment 5: A fundamental problem with the initial EDR Program was that the Council and NMFS decided that it be limited to collecting purely crab fishery data and exclude the collection of economic data associated with other activities of the fishing vessels and processors that participate in the crab fisheries.

Response: NMFS disagrees. The EDR Program collects data necessary to understand the CR Program's effects and performance. The EDR Program's original goals and implementing regulations focused on crab fishery data collection. The EDR Program was established this way to provide more detailed information for analyses, as the individual crab fisheries differ in their prosecution. Regulations implementing the EDR Program were intended to meet a specific purpose and need to collect crab fishery data. The alternatives considered, and the revisions implemented by this action are consistent with that purpose and need.

Comment 6: A fundamental problem with the initial EDR Program was that the EDR data are maintained by a third party data manager who provides those data to analysts in a blind format that does not allow analysts to directly identify the source of any observations. Additionally, an alternative that allowed for the removal of blind formatting was discussed in the RIR/IRFA for this action, but the discussion is not complete.

Response: NMFS disagrees. According to the PRA support statement from the original EDR Program, Congress required that an independent third party data collection agent (DCA) administer the collection and dissemination of EDR data to address concerns for strict control over sensitive economic data. NMFS then selected PSMFC to be the DCA. Additionally, NFMS and the Council considered the information provided in the RIR/IRFA prepared for Amendment 42, as well as public testimony, in determining whether or not to remove the blind formatting requirement. Section 2.5.1 of the RIR/IRFA discusses the potential impacts of removing the requirements of removing blind formatting. This section was reviewed by the public, the Council's Scientific and Statistical Committee (SSC) and Advisory Panel (AP), and the Council. Based on the information presented in the RIR, and public concern that the removal of blind formatting could result in the release of sensitive business information, NMFS and the Council concluded that maintaining blind formatting would reduce the risk of releasing sensitive business information when providing data to analysts.

Comment 7: The RIR/IRFA was incomplete, did not include suggestions from the SSC or the Alaska Fisheries Science Center (AFSC), appears to be biased towards industry, and does not clearly state the objectives of the action.

Response: NMFS disagrees. The RIR/IRFA was developed by Council staff, in cooperation with individuals from NMFS, the SSC, the AFSC, and the AP. Information found in the RIR/IRFA is taken directly from the multi-year review of the quality of data collected through the EDRs, as well as reports from the AFSC, the Council, and PSMFC. The RIR/IRFA was also made available to the public beginning in early 2012. The public has had several opportunities to provide comment on the revised EDR forms and the RIR/IRFA. NMFS has determined that the RIR/IRFA provides a comprehensive review of the objectives of Amendment 42 and meets the requirements of Executive Order 12866 and other applicable law.

Comment 8: Were the RIR/IRFA objectives specified clearly or at all for Amendment 42?

Response: NMFS acknowledges this comment. The objectives for data collection for the CR Program were clearly identified in the original RIR/IRFA for the Program, as well as in the development of Amendments 18 and 19 to the FMP, which established the CR Program. In revising the EDR collection, the Council provided a “purpose and need statement” in the RIR/IRFA for Amendment 42. The Council developed the purpose and need statement after its assessment of the original EDR Program. The purpose and need statement identified objectives as follows: “To address these problems, the Council intends to amend the EDR process so that the data collected is accurate, informative to the Council, not redundant with existing reporting requirements, and can be reported by industry and administered at a reasonable cost. The Council expressly wants to limit the EDR to the collection of data that have been demonstrated, through the development of the EDR metadata, and other reviews of the data, to be sufficiently accurate.” NMFS has determined that this final rule is consistent with the objectives found in the purpose and need statement for Amendment 42.

Comment 9: The examples of redundant reporting are not documented well and the redundancies may be overstated. There appears to be little or no considerations of methods for improving the scope, quality and access to economic data from other sources (e.g. elandings, fish ticket, and Restricted Access Management [RAM] data).

Response: NMFS disagrees. Several data quality assessments were conducted prior to the development of the RIR/IRFA. Information taken from those assessments has been summarized in the RIR/IRFA and is referenced in section 2.5.6. These assessments describe the EDR Program data inaccuracy and collection redundancy concerns. These initial assessments were published in the “Bering Sea and Aleutian Islands Crab Economic Data Report Database Metadata Documentation” report available on the NOAA Fisheries Web site at http://www.fakr.noaa.gov/sustainablefisheries/crab/rat/edr/default.htm. These data quality assessments were reviewed by the Council and were used in the development of the RIR/IRFA. The EDR data assessment included determining whether the data was available through other federal and state sources. In instances where another source provided EDR data, or more accurate data, NMFS and the Council determined that it was more efficient and less burdensome to industry to remove the data element from the crab EDR and rely on data from the other source. The Council and NMFS will review the EDR Program periodically, and use the opportunity to determine whether additional CR Program data is available from other sources.

Comment 10: Too much weight is given to the objective of reducing the data collection on the industry and insufficient weight to having adequate economic data for these fisheries.

Response: NMFS disagrees. NMFS and the Council only considered removing EDR data elements after several reviews of the CR Program and the EDRs. While every effort is made to ensure that the best available data are collected in the EDRs, NMFS and the Council are required to balance data that can be accurately and consistently reported with the industry's reporting burden. Based on the assessments of the CR Program data, the RIR/IRFA prepared for this action, and public testimony, the Council recommended, and NMFS agrees, that the EDR revisions implemented by this final rule achieve this balance.

Comment 11: We note the annual submission date for the EDR forms is June 28 of each year. If this action does not move forward expeditiously, data submitters will be subjected to another year of an overly burdensome reporting requirement that yields data of questionable quality and utility.

Response: NMFS acknowledges the comment. NMFS has worked to finalize Amendment 42 and this rule as expeditiously as possible. NMFS and the PSMFC will coordinate with affected CR Program participants to implement the EDR requirements.

Comment 12: Are the statements that the “Council was advised that for the current EDR the actual time required to complete the forms was approximately 45 to 50 hours” and that “in the majority of cases, the data collected in the EDRs are already collected under other programs reported elsewhere” consistent? If the data reporting burden is excessive, more efficient data collection methods are probably preferable to severely curtailing the EDR Program.

Response: NMFS acknowledges this comment. The statements are consistent. During the development of this action, the Council and NMFS were presented with information from the affected CR Program participants that demonstrated that some of the EDR data requested was already available through other data collection programs. For example, EDR forms required submitters to specify the number of days fishing by a catcher vessel. This information could be gleaned from the state fish ticket data by looking at the date the first gear was set and the day the last gear was hauled. However, traditionally this information was obtained through catcher vessel logbooks, which collect date and time of setting and hauling for each string, catch in each string, and offload date. Using the data from the logbooks required the EDR submitter to do additional calculations to provide the information requested in the EDR. Industry participants voiced concern that the process of aggregating or disaggregating data already collected is a considerable time burden. Based on their testimony and the assessments of the data, NMFS and the Council removed the information on fishing days and days traveling. Instead NMFS and the Council will refer to the information already submitted through fish tickets to obtain information on fishing days. The same process was followed in instances where industry participants were able to demonstrate that information required by the EDR was already available through a different data collection program.

Additionally, Executive Order 13563, Section 6(a), requires that “[t]o facilitate the periodic review of existing significant regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” In compliance with E.O. 13563, NMFS analyzed the EDR Program and found areas where data collection was ineffective and excessively burdensome. In response, NMFS has modified the EDR Program accordingly.

Comment 13: Does the EDR data element “Health Insurance and Retirement Benefits—available for captain and crew” on the proposed EDR forms refer to the type of benefits or their costs?

Response: NMFS acknowledges this comment. The question regarding “Health Insurance and Retirement Benefits” specifically asks, “Did you provide paid health insurance or retirement benefits to captain or crew members in addition to labor payments reported above?” CR Program participants will only be required to complete a “yes/no” check box in order to report whether or not such benefits are offered to captain and crew for the EDR entity and will not be required to report the types of benefits or their costs.

Comment 14: If the shoreside processor and floating processor EDR forms are essentially the same, it makes sense to combine them, but it is not clear why that would be a “major change” as stated in the proposed rule.

Response: NMFS acknowledges this comment. Both NMFS and the Council believed that a reduction from four EDR forms to three constituted one of the larger changes made to the EDR Program under this action. However, neither the Council nor NMFS meant to imply that this change was in any way more important or significant than any of the other changes to the EDR Program made by this action.

Comment 15: The crew member contracts and settlement sheets could provide a wealth of information with a minimal reporting burden for the industry. That option may have been discarded without adequate consideration of the benefits of those data.

Response: NMFS disagrees. Both NMFS and the Council weighed the cost and benefits of collecting crew contract information. Additionally, public testimony was given in regard to requiring crew contract submittal as part of the EDR Program. The majority of that testimony did not support the collection of crew contracts. The public had concerns over the collection of personally identifiable information (i.e., addresses) that is contained in crew contracts. NFMS and the Council also determined that collecting crew contracts and settlement sheets would substantially increase the administrative costs of the EDR Program. Additionally, the data from crew contracts may not be accurate, may not include all compensation, and may not provide more information than what is already requested in the revised EDR forms. Therefore, NMFS and the Council suggested that CR Program participants continue to submit aggregated crew compensation information.

Comment 16: What's the difference between “variable input quantities and prices” and “input quantities and prices” as indicated on page 9 of the RIR?

Response: NMFS acknowledges this comment. The information on page 9 (section 2.4.2) of the RIR/IRFA was taken from the original PRA supporting statement from the initial EDR Program. The original document appears to have a typographical error, which was carried forward to the RIR. NMFS updated the RIR/IRFA to remove the second phrase “input quantities and prices”.

Comment 17: The RIR/IRFA states that “This element [leased pounds and lease costs] would remove those complications by limiting reporting to market transactions for exclusively monetary compensation”, but it does not discuss the huge reporting loophole this would create in the data on transfers of crab quota share and individual fishing quota.

Response: NMFS disagrees. In determining which data elements to collect, the Council and NMFS had to weigh the usefulness and accuracy of the data being collected against the accuracy and burden of the specific data element. For the data element “leased pounds and lease costs”, the Council and NMFS believed that it was most beneficial and least costly to CR Program participants to collect this information by fishery for “arm's length transactions and monetary payments” only. While it does leave out those transfers that are not “arm's length” or may include non-monetary assets, the Council and NMFS determined that including those elements would complicate the reporting requirement. By including transactions that are not “arm's length” or transactions that include non-monetary payments, CR Program participants would be required to report each transaction separately to isolate transactions that are non-market or that would require the valuation of non-monetary assets. By only requiring share transfers for monetary payments, CR Program participants are able to avoid collecting information concerning assets that are more difficult to value. NMFS and the Council believe limiting the requirement will result in more consistent and accurate reporting by all CR Program participants.

Comment 18: Footnote 11 on page 17, of the RIR, states that “Depending on the specific reporting requirements established for crew under the revised C share active participation requirements adopted by the Council [Amendment 31 to the FMP] and pending Secretarial approval, this information could be available through other sources. Regulations for that action should be finalized in early 2012.” These regulations have not yet been finalized, so the date is incorrect.

Response: NMFS acknowledges the comment and revised the RIR/IRFA to indicate that NMFS is developing a proposed rule for Amendment 31 to the FMP.

NMFS made three changes from the proposed to final rule to clarify who is required to submit an annual EDR. Although the proposed rule preamble and RIR/IRFA described these persons and the need to obtain EDRs from them, the regulations in the proposed rule did not clearly identify crab buyers—primarily registered crab receiver (RCR) permit holders—who did not operate a plant that processed CR crab but purchased processed CR crab (i.e., custom processed-only buyers) as persons who must submit an EDR. The Council intended to include any person contracting for custom processing, as those persons are not currently required to report custom processing costs or revenues from sales (section 2.2.2 of the RIR/IRFA). NMFS changed the regulations for the economic data reports at § 680.6(a)(1) to include those persons who obtained custom processing for CR crab in the list of persons who must submit an annual EDR. NMFS also changed the regulations at § 680.6(b) to clarify that any person who is required under section § 680.6(a) to submit an annual EDR is also required to submit the EDR certification page. Lastly, NMFS added the regulations at § 680.6(e)(2) to require submission of the Annual stationary floating crab processor (SFCP) and shoreside crab processor EDR by any holder of a RCR permit that obtained custom processing for CR Program crab. The changes to § 680.6(b) and § 680.6(e) were necessitated by the previous regulation change to § 680.6(a).

While not resulting in a change to the final rule, NMFS notes a misstatement found on page 17344 of the proposed rule, in the middle of the second paragraph under “Annual Shoreside Processor/Stationary Floating Processor Crab EDR”. There, the preamble states that revenues from custom processing (an arrangement under which a person processes crab on behalf of another) would be added to the EDR, explaining that the data is currently unavailable from other sources.

That information is incorrect. Revenues from custom processing are currently collected and would still be collected, along with quantities of custom processed crab products. Custom processing services purchased are collected by crab fishery, identifying pounds of raw crab processed and finished product amounts together with the payments for services. Thus, consistent with the Council motion, NMFS intends to continue to collect this data and mistakenly indicated that it was not currently collected. NMFS received no comments on this point.

Pursuant to sections 304(b) and 305(b) of the MSA, the NMFS Assistant Administrator has determined that Amendment 42 and this final rule are consistent with the FMP, other provisions of the MSA, and other applicable law.

This final rule has been determined to be not significant for the purposes of Executive Order 12866.

An RIR/IRFA was prepared to assess all costs and benefits of available regulatory alternatives. The RIR/IRFA considers all quantitative and qualitative measures. A copy of this analysis is available from NMFS (see ADDRESSES). The Council recommended Amendment 42 based on the benefits it will provide to the Nation, which will be derived from the updating and revision of the current EDRs. Specific aspects of the economic analysis are discussed below.

This final regulatory flexibility analysis (FRFA) incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' response to those comments, and a summary of the analyses completed to support the action.

NMFS published a proposed rule to implement Amendment 42 on March 22, 2013 (78 FR 17341). An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The description of this action, its purpose, and its legal basis are described in the preamble to the proposed rule and are not repeated here.

NMFS received 18 public comments on Amendment 42 and the proposed rule. Several of the comments touched on subjects that were covered in the IRFA, including the action objectives (comment 8) and reporting requirements (comments 9 and 10). The full comments and responses can be found in the “Response to Comments” section of this final rule.

The EDR is required to be submitted by 74 catcher vessel owners. Based on the definition of a small entity (see section 3.1.1 of the RIR/IRFA for the full definition and discussion of what a “small entity” is), only one vessel owner would be considered a small entity. Instead, because crabs are relatively high value, the majority of harvesters join cooperatives, which allows them to pool their quota.

Three catcher/processor owners are required to submit catcher/processor data reporting forms under the proposed action. None of the catcher/processors are considered small entities. Nineteen shore-based or floating processors are required to submit their EDR data. Of these nineteen, four are small entities that are controlled by community development corporations or non-profit entities, and five are estimated to be small entities because they employ fewer than 500 individuals.

This action requires all catcher vessel and catcher/processor operators to report categories of information: Ex vessel revenues; market lease revenues; crew compensation; bait, food, and provision purchases; and fuel use by crab fishery. Catcher vessel and catcher/processor operators would also be required to report annual fuel and labor costs aggregated across all fisheries and identify whether the vessel operated as a tender. Processors and catcher/processors would be required to report crab purchases, custom processing services provided and purchased, crab sales revenue, and processing labor costs.

The reporting requirement under this action is substantially less than was required under the previous regulations. The changes to the EDR Program will reduce the record keeping and reporting requirements substantially from the status quo, resulting in reduced administrative expenses for both small and large entities.

A FRFA must describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statues, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency that affect the impact on small entities was rejected. “Significant alternatives” are those that achieve the stated objectives for the action, consistent with prevailing law with potentially lesser adverse economic impacts on small entities, as a whole. No significant alternatives were developed for this action. This action minimizes the economic impacts of the status quo on small entities by requiring participants to only submit those data elements that were assessed and were found to be the most accurately and consistently reported by industry members. By reducing the amount of data collected, the burden on industry members to report has been reduced.

No duplication, overlap, or conflict between this action and existing Federal rules has been identified.

The recordkeeping, reporting, and other compliance requirements will be reduced by this action. The initial data collection program, which was created through the creation of the CR Program, required more data to be submitted than what is required under this new action. After assessing the data, the Council and NMFS both worked with industry, the SSC, the AP, and the public to ensure that only those data that can be reliably, consistently, and accurately reported are included in the revised EDR. Submission of the annual EDR is mandatory.

The professional skills necessary to comply with reporting and recordkeeping requirements for small entities impacted by this rule include the ability to read, write, and understand English, and the ability to use a personal computer and the internet. The person also must have authority to take actions on behalf of the designated signatory. Each of the small entities must be capable of complying with the requirements of this rule. Each small entity should have financial resources to obtain legal or technical expertise that they might require to fulfill the EDR requirement.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule and shall designate such publications as “small entity compliance guides”. The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS has posted a small entity compliance guide on the NMFS Alaska Region Web site: http://alaskafisheries.noaa.gov/sustainablefisheries/crab/rat/progfaq.htm. Contact NMFS to request a hard copy of the guide.

This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), which have been approved by the Office of Management and Budget (OMB) under OMB Control No. 0648-0518.

Public reporting burden is estimated to average 10 hours for Annual Catcher Vessel Crab EDR; 10 hours for Annual Catcher/processor Crab EDR; 10 hours for combined Annual stationary floating crab processor and shoreside crab processor EDR (replacing formerly two separate EDRs); and 8 hours for Verification of Data. Public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Send comment regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden to NMFS (see ADDRESSSES) and by email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number.

For the reasons set out in the preamble, NMFS amends 50 CFR part 680 as follows: