I. Background

The comprehensive revisions that the Authority is making to part 2411 include changes to the language and structure of the regulations. Provisions have been revised, added, and/or in some cases, reorganized in order to clarify how the Authority implements the procedural requirements of the FOIA. The revisions are not intended to change any rights under the FOIA.

The revisions are intended to achieve compliance with the OPEN Government Act of 2007, Public Law 110-175, 121 Stat. 2524, and Executive Order 13392, 70 FR 75371-75371 (Dec. 9, 2005). Provisions which relate to implementation of the OPEN Government Act are as follows—(1) § 2411.4(b)(1) (identification of deleted information); (2) § 2411.8(a) (setting forth criteria for when the time period for processing requests begins to run and when that time period may be suspended or tolled); (3) §§ 2411.8(c)(5) and 2411.13(b)(3) (address waiver of fees when time limits for complying with FOIA requests are not met); and (4) § 2411.8(d) (assigns individual tracking numbers to requests requiring more than ten days to process and provides phone number/Web site address to inquire about status).

The OPEN Government Act and EO 13392 establish and set forth duties and responsibilities for the Chief FOIA Officer and the FOIA Public Liaison(s). The provisions of the regulations pertaining to these duties and responsibilities are found at: (1) § 2411.3(a) and (c) (delegation of FOIA-related duties to Chief FOIA Officer and designation of FOIA Public Liaison(s)); (2) § 2411.4(b)(1) (identification of deleted information); (3) §§ 2411.8(c)(5) and 2411.13(b)(3) (waives certain processing fees when time limits are not met for processing FOIA requests); (4) § 2411.11(a) (to aid in meeting time limits the FOIA Public Liaison(s) are given responsibility to resolve disputes between requesters and the agency as to the scope of requests or modification of time limits); and (5) § 2411.13(a)(8) (adds definition of “representative of the news media”).

The regulations also contain new provisions to explicitly implement Executive Order 12600, 52 FR 23781 (June 23, 1987), 3 CFR 235 (1987 Comp.) and the Electronic Freedom of Information Act Amendments of 1996, Public Law 104-231, 110 Stat. 3048 (E-FOIA). The Authority has been operating in compliance with these provisions of law, and based on its experience is now updating its regulations to reflect this compliance. A new section implementing Executive Order 12600's procedural structure for notifying those who submit business information to the government when that information becomes the subject of a FOIA request can be found at § 2411.9. New provisions implementing the E-FOIA can be found at: (1) § 2411.2(a) (includes electronic formats within the meaning of the term “record”); (2) § 2411.4(a)(iv) (requires that records that “have become or are likely to become the subject of subsequent requests for substantially the same records” be included in FOIA reading room); (3) § 2411.4(a)(v) (requires general index of records be included in FOIA reading room); (4) § 2411.4(b)(2) (establishment of electronic reading room); (5) § 2411.7 (format of disclosure); (6) § 2411.13(a)(2) (searches for records in electronic form or format); and (7) § 2411.15 (modification of deadline for submission of Annual Report and requirement that it shall be available in electronic format).

Further, the revisions are intended as a routine updating of the Authority's procedures—to streamline the existing procedures based on experience, to reflect certain changes in the procedural requirements of the FOIA since the previous regulations issued, and to make the Authority's procedures easier for the public to understand. Provisions that implement these goals can be found at: (1) § 2411.2 (adds a new section clarifying that the regulations' scope includes information in electronic formats and the relation of the regulations to the Privacy Act regulations in part 2412); (2) § 2411.4 (a) and (b) (merging paragraph (b) of § 2411.4 into paragraph (a) of § 2411.4 so that the policies of all three FLRA components are addressed in one paragraph); (3) § 2411.4(d) (eliminating explanatory discussion of specific FOIA exemptions from mandatory disclosures); (4) § 2411.4(f)(1) and (2) (providing Web site addresses to obtain copies of agency forms); (5) § 2411.5(b) (request is considered an agreement to pay all applicable fees, up to $25.00, unless a waiver is sought); (6) § 2411.6(b) (adding language to give requester the opportunity to discuss/clarify request so that it may be modified, if necessary, to meet regulatory requirements); (7) § 2411.8(b) (moving language from § 2411.13(c)(4) to set forth earlier the objective that requesters reasonably describe records sought); (8) § 2411.10(a)(2) (adding language to explain how to calculate the twenty-day period for responding to appeal); (9) § 2411.10(a)(2)(i) and (b)(2)(i) (providing consistency with other sections regarding the cut-off amount at which fees ($250 and above) will be requested in advance of information production); (10) § 2411.10(a)(2)(ii) and (b)(2)(ii) (providing for information production before payment of fees below $250 if no history of failure to pay fees on time); (11) § 2411.13(a)(2) (adding language to inform requesters that searches will be conducted in the most efficient and least expensive manner reasonably possible); (12) § 2411.13(b)(4)(ii)(A) thru (D) (adding language to set forth more clearly the factors to be considered in determining when fees should be waived because a disclosure is in the “public interest”); (13) § 2411.13(b)(4)(iii)(A) and (B) (adding language clarifying when a requester's interest is “primarily commercial”); (14) § 2411.13(b)(4)(v) (adding language to clarify when partial fees will be assessed); (15) § 2411.13(h) (adding language related to handling requests by other than a party to a proceeding before the agency for a copy of a transcript, diskette, or other recordation of the proceeding); and (16) § 2411.14 (providing information on record retention and preservation).

The Authority has added language relating to the role of the Inspector General throughout the regulation ( i.e. , purpose (§ 2411.1), scope (§ 2411.2), information policy (§ 2411.4), procedures for obtaining information (§ 2411.5)), when requests for information relate to records, documents, or other information of the Inspector General for the Authority.

Finally, the Authority has deleted former § 2411.11 and replaced it with a new part 2417. See 74 FR 11634 (March 14, 2009).

On July 22, 2009, the Authority published a proposed rule with request for comments that proposed to amend 5 CFR, chapter XIV, part 2411 (74 FR 36121). The FLRA received no comments during the 30 days allowed for public comment, but received one set of comments after the close of the comment period on August 21, 2009. This set of comments, from the National Security Archive, is discussed below.

Comment 1: Amend proposed § 2411.5(a) to clarify that agency subcomponents will accept facsimiled requests as well as written and e-mail requests.

The Authority agrees with this comment and amends proposed § 2411.5(a) to provide for the acceptance of facsimiled requests.

Comment 2: Amend proposed § 2411.5(b) to eliminate the requirement that requests include an explicit statement accepting financial liability for the direct costs of processing the request, and encourage requesters to state their fee category.

The Authority agrees with this comment in part and amends proposed § 2411.5(b) to provide that each request will be considered an agreement to pay all applicable fees charged under § 2411.13, up to $25.00, unless a requesters seeks a waiver of fees. However, the Authority sees no need to add a statement encouraging requesters to state their fee category inasmuch as the relevance of fee categories is adequately addressed in § 2411.13.

Comment 3: Amend proposed § 2411.6 to clarify that Authority personnel are required to provide requesters with assistance in reformulating requests that insufficiently describe the record sought. The commenter explains that, as drafted, § 2411.6(b) requires that a requester be given an opportunity to modify a request that does not “reasonably describe” the records sought whereas § 2411.6(a) could be read to state that this opportunity may, or may not, be granted.

The Authority agrees with the comment and modifies paragraphs (a) and (b) of § 2411.6 to clarify that a requester will be given an opportunity to modify a request that does not “reasonably describe” the records sought.

Comment 4: Amend proposed § 2411.8(c)(5) to clarify that applicable fees will not be charged for partial determinations when the remainder of the request is pending beyond FOIA's 20 day statutory time limit, unless “unusual or exceptional circumstances” exist, as defined in § 2411.11(b).

The Authority agrees with this comment and modifies proposed § 2411.8(c)(5) to clarify that the Authority, absent unusual or exceptional circumstances, will not assess search fees if an agency component fails to make a final determination with respect to disclosure of all of the records requested within the 20-day period set out in § 2411.8(a).

This rule is issued under Marketing Order No. 981, as amended (7 CFR part 981), regulating the handling of almonds grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

The order is administered locally by the Board. Under the order, handlers are required to treat shipments of almonds to reduce the potential for Salmonella contamination, with limited exceptions. Various equipment systems must be in place and must be “validated” by the Board's TERP to ensure that treatments meet a required 4-log reduction of Salmonella in almonds destined for consumers in the United States, Canada, and Mexico. The TERP consists of four scientists, with a representative from the Food and Drug Administration serving as an ex-officio member.

In an interim final rule published in the Federal Register on June 18, 2009, and effective on June 19, 2009 (74 FR 28872, Doc. No. AMS-FV-08-0045; FV08-981-2 IFR), § 981.442 was amended by specifying that validation means that the treatment technology and equipment have been demonstrated to achieve in total a minimum 4-log reduction of Salmonella bacteria in almonds. Validation data must be both submitted to and accepted by the TERP for each piece of equipment used to treat almonds prior to its use under the program. Prior to the change, the regulation did not specify that validation data must be both submitted to and accepted by the TERP for each piece of equipment prior to its use under the program.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are approximately 6,200 producers of almonds in the production area and approximately 100 handlers subject to regulation under the marketing order. Additionally, the Board estimates there are about 15 process authorities and 30 almond manufacturers under the Salmonella treatment program. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000.

Data for the most recently-completed crop year indicate that about 50 percent of the handlers shipped under $7,000,000 worth of almonds. Dividing average almond crop value for 2006-07 reported by the National Agricultural Statistics Service of $2.258 billion by the number of producers (6,200) yields an average annual producer revenue estimate of about $364,190. Based on the foregoing, about half of the handlers and a majority of almond producers may be classified as small entities. While data regarding the size of the process authorities and almond manufacturers is not available, it may be assumed that some process authorities and manufacturers may be classified as small entities.

This rule continues in effect the action that revised § 981.442(b)(3)(i) of the order's administrative rules and regulations specifying that the term “validation” under the Salmonella treatment program means that validation data must be both submitted to and accepted by the TERP for each piece of treatment equipment prior to its use under the program. This revision will help ensure that all treatment equipment meets the program's 4-log requirement prior to its use. Authority for this action is provided in § 981.42(b) of the order.

Regarding the overall impact of this action on the affected entities, it is expected to be minimal. Validation data had previously been submitted to the Board's TERP for review. This interim final rule simply specified that such data must be accepted by the TERP for all treatment equipment prior to its use under the program.

The Board's Food Quality and Safety Committee (committee) met prior to the board meeting to consider this change. The committee considered the alternative to this action, which maintained the status quo whereby equipment could be used under the program that had completed validation testing, but had not been accepted by the TERP. The committee, and subsequently the Board, concluded that acceptance by the TERP was important in order to help ensure that all treatment equipment consistently meets the 4-log requirement of the program.

The Board, with the expertise of various committees and subcommittees, makes recommendations regarding the revisions to the marketing order rules and regulations after consideration of all available information, including comments received by Board staff. At the meetings, the impact of and alternatives to these recommendations are deliberated. The Board and its committees and subcommittees consist of individual producers and handlers with many years of experience in the industry, who are familiar with industry practices and trends. All Board, committee, and subcommittee meetings are open to the public and comments are widely solicited. In addition, minutes of all meetings are distributed to Board, committee, and subcommittee members and others who have requested them, and are also posted on the board's Web site, thereby increasing the availability of this critical information within the industry.

This rule will not impose any additional reporting and recordkeeping requirements on California almonds handlers, process authorities, or almond manufacturers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Further, the subcommittee, committee, and Board meetings where this issue was discussed were widely publicized throughout the California almond industry, and all interested persons were encouraged to attend the meetings and participate in deliberations on all issues. The issue was discussed at two Food Quality and Safety Committee meetings in April 2008 and at two Board meetings, one in April and one in May 2008. All of these meetings were public meetings, and all entities, both large and small, were able to express views on this issue.

Comments on the interim final rule were required to be received on or before August 17, 2009. No comments were received. Therefore, for the reasons given in the interim final rule, we are adopting the interim final rule as a final rule, without change.

To view the interim final rule, go to http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064809d2903 .

This action also affirms information contained in the interim final rule concerning Executive Orders 12866 and 12988, the Paperwork Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 101).

After consideration of all relevant material presented, it is found that finalizing the interim final rule, without change, as published in the Federal Register (74 FR 28872, June 18, 2009) will tend to effectuate the declared policy of the Act.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Boeing Model 737-300, -400, and -500 series airplanes. That NPRM was published in the Federal Register on June 9, 2009 (74 FR 27254). That NPRM proposed to require revising the maintenance program to include new fuel system limitations for airplanes modified in accordance with Supplemental Type Certificate (STC) ST00127BO. That NPRM also proposed to require inspections and checks of the digital transient suppression devices and corrective actions, if necessary.

We gave the public the opportunity to participate in developing this AD. We considered the comment received. Boeing supports the NPRM.

Since we issued the NPRM, we have determined that it is necessary to clarify the AD's intended effect on spare and on-airplane fuel tank system components, regarding the use of maintenance manuals and instructions for continued airworthiness.

Section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) specifies the following:

We have added Note 2 to this AD to clarify the intended effect of the AD on spare and on-airplane fuel tank system components.

We reviewed the relevant data, including the comment received, and determined that air safety and the public interest require adopting the AD with the change described previously. We also determined that this change will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD affects 12 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this AD. The average labor rate is $80 per work hour.

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), and

(3) 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.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Boeing Model 747 Airplanes. That NPRM was published in the Federal Register on April 1, 2009 (74 FR 14750). That NPRM proposed to require replacing the inboard trailing edge (TE) flap transmission carbon disk no-back brakes with skewed roller no-back brakes at the TE flap transmission, positions 4 and 5.

We gave the public the opportunity to participate in developing this AD. We considered the comments received from the three commenters.

Boeing concurs with the contents of the NPRM.

Lufthansa has doubts that all criteria for the issuance of an AD are met. The commenter states that there is no comprehensible technical background.

We infer that the commenter is requesting that we withdraw the NPRM. We disagree. Although Boeing Special Attention Service Bulletin 747-27-2422, dated October 30, 2008, states that “since 1999, four operators have reported that the inboard TE flaps blew back due to the failure of a transmission carbon disk no-back brake,” there have been ten reports of failed inboard and outboard carbon disk no-back brakes since 1973, and six reports since 1999. Nine of the reports were for the inboard no-back, and one for an outboard no-back. All of the failures (i.e., uncommanded blowbacks) occurred at a sufficient altitude for the pilots to react and control the airplane. As a result of these events, Boeing conducted extensive lab tests to check the wear properties and friction characteristics of new and used carbon disk brakes. The tests revealed a wide variation in friction capability but no wear correlation between friction coefficient and the number of cycles. Therefore, the carbon brake may be ineffective regardless of wear. Because of the test results and the number of events that have occurred in the fleet, we find it was necessary to proceed with issuing this AD to ensure the safety of the fleet.

Lufthansa requests that we include a repetitive D-Check shop overhaul (with updated procedures, if necessary) as an optional method of compliance to the proposed modification. Lufthansa states that no-back brakes are removed every 6 years during D-Check and are overhauled in accordance with the latest Boeing overhaul manuals. Lufthansa states that since 1995 there have been no failures of the brake system, or a flap blow back event (which Lufthansa states is extremely improbable due to the fact that a simultaneous double failure has to exist). With the above-mentioned overhaul and an additional maintenance task, Lufthansa states that it is reducing if not even excluding the risk of a double failure. Lufthansa requests a compliance time of 8 years for the first D-check, 8 years for the second D-check, and 6 years for subsequent D-checks.

We do not agree with the commenter's request to include an optional method of compliance. Based on the results of Boeing's extensive testing of carbon disk brakes, the carbon brakes may be ineffective regardless of wear. Therefore, overhauling the carbon brakes at D-check intervals would not adequately address the unsafe condition. In addition, we do not consider that the brake system failure—which involves a latent failure of the no-back brake, combined with an active failure of the flap drive system—is extremely improbable. No change to this AD is necessary.

Japan Airlines (JAL) requests that we issue the AD after Revision 1 of Boeing Service Bulletin 747-27-2422 is available. The NPRM cited Boeing Special Attention Service Bulletin 747-27-2422, dated October 30, 2008, as the appropriate source of service information for installing the skewed roller no-back brakes at the trailing edge flap transmission. JAL requests that Boeing amend Service Bulletin 747-27-2422 to improve Figure 3 to show part numbers and the assembly sequence. JAL adds that Boeing is considering issuing Revision 1.

We agree that adding part numbers and the assembly sequence to Figure 3 in Boeing Service Bulletin 747-27-2422, dated October 30, 2008, may be beneficial. However, we do not consider that delaying the final rule until after the release of a future service bulletin revision is warranted. Boeing Service Bulletin 747-27-2422, dated October 30, 2008, already includes sufficient information to install the skewed roller no-back brakes at the trailing edge flap transmission within the compliance time. However, paragraph (h) of the final rule provides operators the opportunity to request an AMOC or an extension of the compliance time if data are presented to justify such an extension.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD as proposed.

We estimate that this AD would affect 249 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators 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), and

(3) 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.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Emergency AD No.: 2009-0167-E, dated July 30, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

DG Flugzeugbau GmbH has issued Technical note No. 301/25, 323/16, Rev. 1, dated August 4, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might have also required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the AD. These requirements take precedence over those copied from the MCAI.

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 a recent pre-flight inspection detected a broken rod end of the aileron control push rod in the control column. An investigation revealed that the broken rod end was made of machining steel that was used in the initial production years of Glaser-Dirks. The aileron control column push rod has been redesigned and is now made from high strength steel. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-0897; Directorate Identifier 2009-CE-048-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

For the reasons discussed above, I certify 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); and

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

Discussion

The FAA issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 727 airplanes. That supplemental NPRM was published in the Federal Register on December 10, 2008 (73 FR 75009). That supplemental NPRM proposed to require performing an operational test of the engine fuel suction feed of the fuel system, and other related testing and corrective actions if necessary. That supplemental NPRM also proposed to reduce the compliance time for low-utilization airplanes.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received on the supplemental NPRM.

Boeing concurs with the content of the supplemental NPRM.

FedEx Express states that the operational test of the engine fuel suction feed of the fuel system, provided in Boeing Service Bulletin 727-28-80, dated June 21,1985, and specified in paragraph (f) of the supplemental NPRM, seems to be equivalent to the operational test required by AD 2007-11-08, amendment 39-15065 (72 FR 28594, May 22, 2007). We referred to Boeing Alert Service Bulletin 727-28-A0132, dated February 22, 2007, as the appropriate source of service information for doing certain requirements (including an operational test) in AD 2007-11-08. FedEx Express believes that the supplemental NPRM accomplishes the same operational test as AD 2007-11-08.

From this comment, we infer that FedEx Express is requesting that we give credit in this AD for operational tests done in accordance with Boeing Alert Service Bulletin 727-28-A0132, dated February 22, 2007, as required by AD 2007-11-08. We agree. The operational test specified in Boeing Alert Service Bulletin 727-28-A0132, dated February 22, 2007; and Boeing Service Bulletin 727-28-80, dated June 21, 1985; are equivalent procedures found in the Boeing 727 airplane maintenance manual (AMM). Therefore, we have added a new paragraph (g) to this AD, and reidentified subsequent paragraphs accordingly, to give credit for operational tests done in accordance with AD 2007-11-08.

FedEx Express asks if Boeing has reviewed and identified any critical design configuration control limitations (CDCCLs) items in Boeing Service Bulletin 727-28-80, dated June 21, 1985.

From this question, we infer that FedEx Express is asking for clarification of whether this AD is compliant with SFAR 88. We reviewed Boeing Service Bulletin 727-28-80, and found that the actions specified do not change the airplane type design. During SFAR 88 evaluations, the original design in this area was not identified as one requiring a CDCCL to comply with the SFAR 88 requirements. Therefore, there are no SFAR 88 CDCCLs associated with Boeing Service Bulletin 727-28-80, dated June 21, 1985, or this AD. We have made no change to the AD in this regard.

FedEx Express states that page 24, Step G., of Boeing Service Bulletin 727-28-80, dated June 21, 1985, specifies performing a functional test per the Boeing 727 AMM. FedEx Express notes that there is no functional test specified in the current Boeing 727 AMM.

From this statement, we infer that FedEx Express is requesting clarification of the functional test that is provided in Boeing Service Bulletin 727-28-80. We have reviewed Subject 28-22-0 of the Boeing 727 AMM, and have determined that the title of the functional test specified in the AMM has changed from “Engine Fuel Feed System Functional Test” to “Engine Fuel Suction Feed—Operational Test.” Although the title of this action has changed, we have confirmed that doing the operational test, as specified in Boeing Service Bulletin 727-28-80, fulfills the functional test requirements of this AD. We have not changed the AD in this regard.

FedEx Express asks for clarification of whether the current actions in the supplemental NPRM are applicable to airplanes on which the auxiliary fuel tanks have been removed and/or deactivated.

We agree that clarification in this regard is necessary. The effectivity of Boeing Service Bulletin 727-28-80, dated June 21, 1985, has been divided into airplane groups to reflect different engine fuel feed systems and fuel tank configurations based on the original type certificate configuration. The work instructions of Boeing Service Bulletin 727-28-80, dated June 21, 1985, do not address airplane configurations on which the auxiliary fuel tanks have been removed or deactivated.

Regardless, as provided in sections 39.15 through 39.21 of the Federal Aviation Regulations (14 CFR 39.15 through 39.21), an AD applies to each product identified in the AD, even if an individual product has been changed in the area addressed by the AD. If a change in a product affects an operator's ability to accomplish actions required by the AD, the operator must request approval of an alternative method of compliance (AMOC). According to the provisions of paragraph (i) of this AD, we may approve a request to allow an AMOC to the requirements of this AD for airplanes that have had the auxiliary fuel tanks removed or deactivated, if the request includes data that show that it would provide an acceptable level of safety. We have not changed the AD in this regard.

FedEx Express states that the repetitive detailed inspections and engine fuel suction feed operational tests in AD 2007-11-08 are required at intervals not to exceed 15,000 flight cycles, whereas the repetitive operational tests in the supplemental NPRM are required at intervals not to exceed 7,000 flight hours or 18 months, whichever occurs first. FedEx Express adds that the operational test in the supplemental NPRM would be repeated twice as often within those time periods.

From these statements, we infer that FedEx Express is asking that the repetitive intervals in the supplemental NPRM be changed to match the repetitive intervals in AD 2007-11-08. We do not agree. The requirements in AD 2007-11-08 mandate inspection for wear or chafing of the aluminum conduit of the fuel boost pump. That AD was issued after an outboard fuel tank exploded due to arcing of the wire against the metal conduit. The intervals for the suction feed check in that AD coincide with re-inspection of the wire bundles. In addition, the latent failure condition addressed in the supplemental NPRM was re-analyzed based on allowable failure rates to preclude unsafe system performance, while taking into account the timing of heavy maintenance checks. Although the repetitive interval in the supplemental NPRM does equate to performing the test twice as often as the interval in AD 2007-11-08, analysis indicates that doing the test at the proposed intervals is necessary to address the unsafe condition identified in this AD in a timely manner and to provide an acceptable level of safety. We have not changed the AD in this regard.

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

We estimate that this AD affects 709 airplanes of U.S. registry. We also estimate that it takes 1 work-hour per product, per test, to comply with this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $56,720, or $80 per product, per test.

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

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

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

For the reasons discussed above, I certify 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); and

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Boeing Model 767-200, -300, and -300F series airplanes. That NPRM was published in the Federal Register on January 12, 2009 (74 FR 1155). That NPRM proposed to require repetitive inspections for fatigue cracking and corrosion of the upper link fuse pin of the nacelle struts, and related investigative and corrective actions if necessary. That NPRM also proposed to provide terminating action for the repetitive inspections.

We gave the public the opportunity to participate in developing this AD. We considered the comments received.

Boeing concurs with the content of the NPRM. Air Transport Association (ATA) on behalf of its members Delta Airlines and United Airlines (UAL) agrees with the intent of the NRPM, and provides the following recommendations from its members.

Delta asks that we revise the NPRM to include a note in the AD which specifies that the upper link inspections can be done with the pylon and/or engine in any position. Delta states that Boeing Alert Service Bulletin 767-54A0074, Revision 1, dated April 24, 2008, specifies doing a visual inspection with “the fuse pin in place, without engine removal and strut removal.” Delta notes that there are times when engines or pylons are removed for other reasons, and it would prefer not to wait until the engine and strut are reinstalled. Delta states that the procedures specified in Boeing Alert Service Bulletin 767-54A0074, Revision 1, dated April 24, 2008, allow fuse pin inspections with the engines and pylons in any position. Delta adds that related service information, Boeing Telex 1-1154785301, dated January 21, 2009 (released after the NPRM was issued), specifies that the upper link inspections can be done with the pylon and/or engine in any position.

We agree with the commenter's request. For the reasons provided by Delta, we have included a new Note 1 after paragraph (f) of this AD to specify that the upper link inspections can be done with the pylon and/or engine in any position.

Delta asks that we revise the NPRM to include a note to clarify that the “References” column in the table in Figure 2 of Boeing Alert Service Bulletin 767-54A0074, Revision 1, dated April 24, 2008, should be treated as “refer to” material (which is information that provides guidance for using related procedures), as defined in Note 9 of paragraph 3.A. of that service bulletin. Delta points out that the procedures in Boeing Telex 1-1154785301, dated January 21, 2009, specify that the airplane maintenance manual (AMM) and standard operating procedures manual (SOPM) are identified in the “References” column of that table as “refer to” material so that operator equivalent procedures may be used.

We agree that the material in the “References” column in the table in Figure 2 of Boeing Alert Service Bulletin 767-54A0074, Revision 1, dated April 24, 2008, refers to the procedures in the specified manuals and should be treated as guidance for using related procedures. However, to add a note to this AD could be confusing because none of the paragraphs in the AD refer to the procedures in those manuals. Therefore, we have made no change to the AD in this regard.

Delta asks that we revise the NPRM to include a note to clarify that re-application of primer in accordance with Steps 4.b.(1) and 4.b.(2) of the Accomplishment Instructions of Boeing Alert Service Bulletin 767-54A0074, Revision 1, dated April 24, 2008, is necessary only to touch up bare areas of the fuse pin. Delta states that paragraph 3.B, Step 4.b., of the Accomplishment Instructions of Boeing Alert Service Bulletin 767-54A0074, Revision 1, dated April 24, 2008, specifies applying two coats of Boeing Material Specification (BMS) 10-11 primer after each inspection if no cracks are found during the inspection. Delta notes that the procedure does not specify “touching up primer” but rather applying two coats each time. Delta adds that since the repeat inspection interval is much shorter, the fuse pin will have ten coats of primer built up over the next ten years, and asserts that the inspection cannot be done through ten coats of primer. Delta points out that Boeing has confirmed in Boeing Telex 1-1154785301, dated January 21, 2009, that two coats of primer are required only to touch up bare areas on the fuse pin.

We agree that clarification is necessary for the reasons provided by Delta. We have included a new Note 2 after paragraph (f) of this AD to specify that two coats of primer are necessary only to touch up bare areas of the fuse pin.

UAL asks that operators be given credit for inspections done before the effective date of the AD in accordance with Boeing Service Bulletin 767-54-0074, dated March 27, 1997. UAL notes that paragraph (h) of the NPRM provides credit for the replacement of fuse pins done in accordance with Boeing Service Bulletin 767-54-0074, dated March 27, 1997, but does not provide credit for the inspections, even though the procedures in the original issue and Revision 1 of the service bulletin are the same.

We agree with the commenter. We have confirmed that inspections done before the effective date of this AD in accordance with Boeing Service Bulletin 767-54-0074, dated March 27, 1997, are acceptable for compliance with the inspection requirements of paragraph (f) of this AD. However, we point out that Boeing Service Bulletin 767-54-0074, dated March 27, 1997, allows the use of operator's equivalent procedures, which Boeing Service Bulletin 767-54-0074, Revision 1, dated April 24, 2008, does not allow. Therefore, we have revised paragraph (h) of this AD to give credit for inspections done before the effective date of this AD in accordance with Boeing Service Bulletin 767-54-0074, dated March 27, 1997, provided that the inspection was not done using operator's equivalent procedures.

UAL suggests that paragraph (h) of the NPRM be revised to clarify the meaning of “corresponding requirements.” UAL states that paragraph (h) of the NPRM specifies that replacement of the fuse pins in accordance with Boeing Service Bulletin 767-54-0074, dated March 27, 1997, is acceptable for compliance with the “corresponding requirements” of this AD. UAL notes that the phrase “for compliance with the `corresponding requirements' of this AD” is very vague.

We agree that clarification is necessary for the reasons provided by the commenter. We have changed paragraph (h) of this AD to refer to paragraph (f) of this AD for the inspections and paragraph (g) of this AD for the modification.

Aeroflot asks that we increase the grace period for the inspections so that operators can prepare for accomplishment of the requirements in the AD. Aeroflot states that it is convenient to plan the work with common access SC-Checks, and adds that the NPRM gives a simple C-Check preparation period. Aeroflot states that this work has an economic impact with the time used in preparation and gaining access.

We do not agree with the commenter's request. In developing an appropriate compliance time for this AD, we considered not only the safety implications, but the manufacturer's recommendations, and the practical aspect of accomplishing the actions within an interval of time that corresponds to typical scheduled maintenance for affected operators. However, under the provisions of paragraph (i) of this AD, we may consider requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety. We have made no change to the AD in this regard.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD affects 354 airplanes of U.S. registry. We also estimate that it will take 4 work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $113,280, or $320 per product.

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), and

(3) 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.

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The shrimp fishery off the southern Atlantic states is managed under the FMP. The FMP was prepared by the Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

On June 1, 2009, NMFS published a notice of availability for Amendment 7 and requested public comments (74 FR 26170). On June 24, 2009, NMFS published the proposed rule to implement Amendment 7 and requested public comments (74 FR 30034). NMFS approved Amendment 7 on August 19, 2009. The rationale for the measures contained in Amendment 7 is provided in the amendment and the preamble to the proposed rule and is not repeated here.

NMFS received 153 public comments on Amendment 7 and the proposed rule, including 1 comment from a governmental agency, 148 comments from individuals (including 145 copies of a form letter sent by individuals), and 4 comments from non-governmental agencies. Six comments were in favor of the measures contained in the amendment and the rule, and the remaining comments, including all those in the form letter, were opposed to the amendment and the rule. The following is a summary of the comments received that were opposed to the amendment and the rule, and NMFS' respective responses.

Comment 1 : Commenters who signed the form letter stated that rock shrimping kills juvenile red snapper and grouper; therefore, all shrimping in the EEZ should be eliminated.

Response : No evidence exists that the rock shrimp trawl fleet captures juvenile red snapper. During 2001-2006, NMFS initiated observer coverage of the rock shrimp fishery in the U.S. southeastern Atlantic (east coast). The primary objective of this effort was to estimate catch rates for target and non-target species. Results of this study show rock shrimp comprised 16 percent of the total catch, followed by dusky flounder (13 percent), inshore lizardfish (11 percent), iridescent swimming crab (7 percent), longspine swimming crab (6 percent), spot (5 percent), blotched swimming crab and brown shrimp (3 percent each), and horned searobin and brown rock shrimp (2 percent each). Other finfish species were rock sea bass, bluespotted searobin, red goatfish, and lefteye flounder. Most of these species, with the exception of spot, are not targeted in commercial or recreational fisheries. A summary of bycatch issues for the rock shrimp fishery and a report on the above study can be found in Amendment 7 to the Shrimp FMP.

Confusion about rock shrimp bycatch likely results from evidence that the fishery for penaeid shrimp (pink, white, and brown shrimp) in the Gulf of Mexico catches a high level of juvenile red snapper. However, no evidence exists that the penaeid shrimp fishery in the South Atlantic has the same level of red snapper catch. In fact, the Southeast Area Monitoring and Assessment Program - South Atlantic Coastal Survey has not caught any red snapper during shallow water trawl studies since 2007, and no more than two red snapper in any year during 1995-2007.

Comment 2 : One individual stated no permits should be required for rock shrimp fishing because the cost and difficulty of finding rock shrimp effectively regulate the fishery.

Response : Permits have been required in the South Atlantic rock shrimp fishery since 1996. Permits provide NMFS with a vehicle to collect data on fishing activity and catch, and to help enforce regulations for vessels subject to Federal jurisdiction. The data on fishing activity and catch are necessary for the Council and NMFS to comply with the Magnuson-Stevens Act and other applicable laws.

This final rule corrects a number of non-substantive errors in 50 CFR part 622. In § 622.6, this rule corrects a subject heading that was misidentified as “Gulf and South Atlantic EEZ”, as it should read “South Atlantic EEZ”. In § 622.34, a subject heading is added to paragraph (k)(1) because it had been inadvertently removed in a prior rulemaking. In § 622.41, paragraphs (a)(4)(i)-(iii) are added to paragraph (a)(4), as these paragraphs were inadvertently removed in a prior rulemaking. These corrections are unrelated to the actions taken via Amendment 7.

The Administrator, Southeast Region, NMFS, determined that Amendment 7 is necessary for the conservation and management of the shrimp fishery and is 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.

An FRFA was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant economic issues raised by public comments, NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of the full analysis is available from NMFS (see ADDRESSES ). A summary of the FRFA follows.

This final rule will rename the rock shrimp permit and endorsement, require all South Atlantic shrimp permit holders to provide economic data if selected, reinstate all limited access rock shrimp endorsements for those vessel owners who renewed their open access permit in the year in which they failed to renew their limited access endorsement, remove the 15,000-lb (6,804-kg) rock shrimp landing requirement, and reinstate all limited access rock shrimp endorsements lost due to not meeting the landing requirement. The purposes of this final rule are to ensure that sufficient effort remains active to sustain the fishery and its infrastructure and the Council has necessary economic data to satisfy requirements under the Magnuson-Stevens Act and other statutes.

No significant issues associated with the economic analysis were raised through public comment on the proposed rule. A summary of all comments is provided in the previous section of this preamble. No changes were made in the final rule as a result of these comments.

Within the South Atlantic shrimp fisheries, vessels may possess one or more of the following Federal permits: a penaeid shrimp permit, an open access rock shrimp permit, and a limited access rock shrimp endorsement. As of April 2008, NMFS issued 266 open access rock shrimp permits, 620 penaeid shrimp permits, and 155 limited access rock shrimp endorsements. Of the 155 limited access rock shrimp endorsements, 125 were active or renewable and 30 had been terminated. The total number of vessels that possessed one or more of these permits or endorsements was 694, and, thus, this is the maximum number of vessels that could be directly impacted by the actions in this final rule. Of these 694 vessels, 293 vessels also possessed Gulf shrimp moratorium permits, and, therefore, only 401 vessels are unique to the South Atlantic shrimp fisheries.

The fleet of vessels with limited access rock shrimp endorsements is fairly homogeneous with respect to its physical characteristics. The average or typical vessel in this fleet is approximately 20 years old, nearly 73 ft (22.3 m) in length, gross tonnage of 132 tons, with a fuel capacity of approximately 16,000 gallons (60,567 liters), and a hold capacity of more than 63,000 lb (28,576 kg) of shrimp. The average vessel typically uses four nets averaging between 55 and 60 ft (17.2-18.3 m) in length and uses between three and four crew on each trip. More than 90 percent of these vessels are large (60 ft (18.3 m) in length or greater) while less than 9 percent are small (less than 60 ft (18.3 m) in length). More than 87 percent of these vessels have on-board freezing capacity. More than two-thirds of these vessels have steel hulls, while the other vessels are nearly equally split between fiberglass and wood hulls.

Of the 155 vessels with limited access rock shrimp endorsements, 145 were commercially fishing at some point between 2003 and 2007, and 10 vessels with endorsements were not commercially active during these years. All of the commercially inactive vessels are state-registered boats that are older, smaller, and less powerful than the average vessel in the fleet.

Between 2003 and 2007, commercially active vessels with endorsements averaged nearly $284,000 in total revenue per year. These vessels' dependence on landings from the South Atlantic rock shrimp fishery was relatively low, on average, accounting for 7 percent of their total revenue during this time. These vessels were most dependent on revenue from the Gulf shrimp fishery, which, on average, accounted for nearly 46 percent of their total revenue. Revenue from South Atlantic penaeid shrimp landings and Northeast non-shrimp landings were also important, with each representing approximately 22 percent of their total revenue on average. The vast majority of the Northeast non-shrimp revenue came from Atlantic sea scallop landings. Thus, although South Atlantic rock shrimp landings were not unimportant to these vessels' operations, these vessels were considerably more dependent on other fisheries.

The fleet of 694 vessels that possessed one or more South Atlantic shrimp permits or endorsements is very heterogeneous with respect to its physical characteristics. For example, approximately 65 percent of the vessels are large while 35 percent are small. Less than 40 percent have on-board freezing capacity while nearly 60 percent rely on ice for storage purposes. With respect to their hulls, the fleet is approximately evenly split between steel, wood, and fiberglass. On average, this group of vessels is somewhat smaller, older, less technologically advanced and uses less crew and gear relative to vessels that only possess limited access rock shrimp endorsements. Related, between 2003 and 2007, the average total revenue per vessel was $185,000, or 35 percent less than vessels that only possess a limited access rock shrimp endorsement. Further, revenue from the Gulf shrimp, Northeast non-shrimp, and South Atlantic penaeid shrimp fisheries have accounted for 36 percent, 31 percent and 24 percent of total revenue on average during this time. Also, during this time period, the maximum total revenue for a single vessel was approximately $3.7 million.

With respect to the 401 vessels that possessed one or more South Atlantic shrimp permits or endorsements and did not possess a Gulf shrimp moratorium permit, they are also fairly heterogeneous with respect to their physical characteristics. However, on average, they are smaller, older, less technologically advanced and use less crew and gear than the fleet as a whole, and even more so compared to the vessels that only possess a limited access rock shrimp endorsement. For example, nearly 56 percent of these vessels are small, only 10 percent have on-board freezing capacity, and less than 18 percent have steel hulls. Related, between 2003 and 2007, the average total revenue per vessel was only about $135,000, or 27 percent less than the fleet as a whole and 53 percent less than vessels that only possess a limited access rock shrimp endorsement. Since these vessels do not possess a Gulf shrimp moratorium permit and thus cannot participate in the Federal Gulf shrimp fishery, approximately 40 percent of their total revenue comes from both the South Atlantic shrimp and Northeast non-shrimp fisheries respectively, with 15 percent coming from South Atlantic non-shrimp fisheries.

The Small Business Administration defines a small business in the commercial fishing industry as an entity that is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million annually (NAICS codes 114111 and 114112, finfish and shellfish fishing). Based on the annual revenues for the fishery provided above, all shrimp vessels expected to be directly impacted by this final rule are determined, for the purpose of this analysis, to be small entities.

The action to remove the 15,000-lb (6,804-kg) landing requirement will directly affect 27 vessels with active or renewable endorsements, the action to reinstate limited access rock shrimp endorsements lost due to not meeting the landing requirement will directly affect 43 vessels with active or renewable endorsements, the action to reinstate limited access rock shrimp endorsements for those vessel owners who renewed their open access permit in the year in which they failed to renew their limited access endorsement will directly affect 5 vessels with terminated endorsements, and the action to rename the rock shrimp permit and endorsement will directly affect all 125 vessels with active or renewable endorsements and 5 vessels with terminated endorsements. In general, the action to require all South Atlantic shrimp permit holders to provide economic data if selected would apply to all 694 vessels with a South Atlantic penaeid or rock shrimp permit or endorsement. However, since 293 of these vessels possess a Gulf shrimp moratorium permit and therefore must already comply with economic data reporting requirements in that fishery, only 401 vessels will be directly affected by this action. Thus, NMFS determines that this final rule will affect a substantial number of small entities.

The action to remove the 15,000-lb (6,804-kg) landing requirement is expected to directly benefit at least 27 vessels by allowing them to retain their limited access rock shrimp endorsements. Under current regulations, these vessels would be expected to lose their endorsements during the next few years. By retaining their endorsements, these vessels are able to retain the market value of their endorsements, which is estimated to be $5,000. Further, they will retain their ability to participate in the fishery, which in the short term is expected to increase these vessels' average total revenue by only $600 per vessel but could be greater in the long term if they increase their level of participation in the fishery.

The action to reinstate limited access rock shrimp endorsements lost due to not meeting the landing requirement is expected to directly benefit 43 vessels by allowing them to retain their limited access rock shrimp endorsements. By retaining their endorsements, these vessels are able to retain the market value of their endorsements, which is estimated to be $5,000. Further, they will retain their ability to participate in the fishery, which in the short term is expected to increase these vessels' average total revenue by $4,600 per vessel but could be greater in the long term if they increase their level of participation in the fishery.

The action to reinstate limited access rock shrimp endorsements for those vessel owners who renewed their open access permit in the year in which they failed to renew their limited access endorsement is expected to directly benefit 5 vessels by reinstating their endorsements. At present, these vessels' endorsements have been terminated and thus cannot be used to participate in the fishery and in turn have no market value. Reinstatement of these endorsements will allow these vessels to regain the market value of their endorsements, which is estimated to be $5,000. Further, they will regain their ability to participate in the fishery, which in the short term is expected to increase these vessels' average total revenue by $6,000 per vessel but could be greater in the long term if they increase their level of participation in the fishery.

The action to rename the rock shrimp permit and endorsement is expected to directly benefit 130 vessels by reducing the number of permits these vessels must possess and pay for in order to participate in the limited access rock shrimp fishery. The annual benefit is only $10 per vessel and therefore minimal.

The action to require all South Atlantic shrimp permit holders to provide economic data if selected is expected to adversely affect 401 vessels by requiring a sample to provide economic data on an annual basis. However, this reporting requirement would only impose an annual opportunity cost of approximately $15 per vessel. Therefore, this action is not expected to increase these vessels' operating costs and thus would not be expected to decrease their profits.

Three alternatives, including the status quo, were considered for the action to remove the 15,000-lb (6,804-kg) rock shrimp landing requirement. The first alternative, the status quo, would retain the landing requirement. In the long term, retention of the landing requirement would be expected to significantly and permanently reduce the maximum fleet size in the rock shrimp fishery. Specifically, the maximum fleet size under this alternative would only be approximately 37 percent of the Council's desired fleet size and 44 percent of its current fleet size. Such a result would be inconsistent with the Council's objective of retaining sufficient productive capacity in the fishery in order to support the onshore infrastructure. The second alternative to the proposed removal of the landing requirement would have reduced the landing requirement from 15,000 lb (6,804 kg) in at least one out of every four calendar years to 7,500 lb (3,402 kg) in at least one out of every four calendar years. Although this represents a 50-percent reduction in the landings requirement, few additional vessels would be able to meet this requirement relative to the 15,000-lb (6,804-kg) requirement. Therefore, similar to the status quo, this alternative would result in a significant and permanent reduction in the rock shrimp fishery's long-term maximum fleet size. Specifically, the maximum fleet size under this alternative would only be approximately 39 percent of the Council's desired fleet size and 47 percent of its current fleet size. Such a result would be inconsistent with the Council's objective of retaining sufficient productive capacity in the fishery in order to support the onshore infrastructure.

Three alternatives, including the status quo, were considered for the action to reinstate endorsements lost due to not meeting the 15,000-lb (6,804-kg) rock shrimp landing requirement at the end of the 2007 calendar year. The first alternative, the status quo, would not reinstate endorsements lost due to not meeting the 15,000-lb (6,804-kg) rock shrimp landing requirement at the end of the 2007 calendar year. Of the 125 vessels currently possessing active or renewable endorsements, 83 vessels were required to meet the landing requirement by the end of the 2007 calendar year. However, 43 vessels did not meet the landing requirement and thus their endorsements were not eligible for renewal in 2008. Upon these endorsements' termination, the maximum fleet size would be permanently reduced from 125 vessels to 82 vessels. Such a significant and permanent reduction in the maximum fleet size would be inconsistent with the Council's objective of retaining sufficient productive capacity in the fishery in order to support the onshore infrastructure. The second alternative considered for this action would reinstate endorsements to vessels landing at least 7,500 lb (3,402 kg) of rock shrimp in one of four consecutive calendar years. This alternative would only allow three more vessels with active or renewable endorsements to remain in the fishery relative to the no-action alternative. Hence, this alternative did not adequately address the Council's objective.

Three alternatives, including the status quo, were considered for the action to reinstate endorsements lost through failure to renew for vessels that renewed their open access permits. The first alternative, the status quo, would not reinstate endorsements that were lost through failure to renew for vessels that renewed their open access permits. At present, an open access permit is needed to harvest rock shrimp in the EEZ off of North and South Carolina while both the open access permit and the limited access endorsement are needed to harvest rock shrimp in the EEZ off of Georgia and east Florida. Five vessels that previously possessed endorsements renewed their open access permits but failed to simultaneously renew their endorsements. By renewing their open access permits, these vessels indicated that they intended to continue participating in the limited access component of the fishery in the future. Their failure to renew their endorsements at the same time may have been the result of confusion over the application and renewal process associated with the open access permit and the limited access endorsement. The Council does not consider the permanent loss of these endorsements to be an equitable outcome. Further, the unintended loss of these endorsements from the fishery is inconsistent with the Council's objective of retaining sufficient productive capacity in order to support the onshore infrastructure. The second alternative would extend the time allowed to renew endorsements by one calendar year after the effective date of this action. The outcome of this alternative is uncertain as it is dependent on whether the five affected vessel owners take the proper actions within the specified time period. Any vessel owners that did not would not have their vessels' endorsements reinstated, which in turn would result in an unintended and undesired reduction in the maximum fleet size, and, thus, this alternative is also potentially inconsistent with the Council's objective of retaining sufficient productive capacity in order to support the onshore infrastructure.

Two alternatives, including the status quo, were considered for the action to rename the rock shrimp permit and endorsement. At present, an open access permit is needed to harvest rock shrimp in the EEZ off of North and South Carolina while both the open access permit and the limited access endorsement are needed to harvest rock shrimp in the EEZ off of Georgia and east Florida. Five vessels have already lost their endorsements possibly due to confusion associated with the current naming practice and more could be lost in the future. This unintended loss of additional endorsements from the fishery in the future possibly due to vessel owners' confusion with the current naming practice is inconsistent with the Council's objective of retaining sufficient productive capacity in order to support the onshore infrastructure.

Two alternatives, including the status quo, were considered for the action to specify VMS requirements for owners of vessels with limited access rock shrimp endorsements. The alternative to require VMS verification for all vessels with limited access endorsements, which would include those not operating in South Atlantic waters, could cause some vessel owners to relinquish their limited access endorsements, particularly those whose vessels are very small by industry standards and thus technologically incapable of supporting a VMS. Twenty-one vessels would be impacted by this alternative possibly resulting in additional reductions in the number of limited access endorsements. This is inconsistent with the Council's objective of retaining sufficient productive capacity in the fishery in order to support the onshore infrastructure.

Three alternatives, including the status quo, were considered for the action to require all South Atlantic shrimp permit holders to provide economic data if selected. The first alternative, the status quo, would not require South Atlantic shrimp permit holders to provide economic data. At present, economic data are lacking for the South Atlantic shrimp fisheries. The lack of such data makes it difficult for the Council to conduct regulatory impacts analyses that meet the requirements of the Magnuson-Stevens Act, National Environmental Protection Act, the Regulatory Flexibility Act, E.O. 12866, and other Federal statutes. Further, the reauthorized Magnuson-Stevens Act explicitly states that all fishery management plans must indicate all economic information necessary to meet the requirements of the Act. Thus, these data are needed in order for the Council to comply with these various mandates. Furthermore, the lack of such data can lead to potentially misleading information and guidance. Such misinformation can adversely affect decisions made by the Council and NMFS and thereby lead to unforeseen and unintended adverse economic and social consequences on fishery participants. The second alternative would require all shrimp permit holders to provide economic data each year. In effect, this alternative would require a census rather than a sample of permit holders to provide the necessary economic data. A census of permit holders is not required to provide statistically accurate and reliable estimates of important economic variables for the fishery and thus would constitute an unnecessarily onerous time burden on fishery participants.

Copies of the FRFA are available from NMFS (see ADDRESSES ).

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.” As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all vessel permit holders for the South Atlantic shrimp fishery.

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by OMB under control number 0648-0591. NMFS will collect economic data from shrimp vessel owners who operate in Federal waters of the South Atlantic. The public reporting burden for this collection of information is estimated to average 45 minutes per response. This estimate of the 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.

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

The temporary regulations that are the subject of this document are under section 1502 of the Internal Revenue Code.

As published, the temporary regulations (TD 9458) contain errors that may prove to be misleading and are in need of clarification.

Accordingly, the publication of the temporary regulations (TD 9458), which were the subject of FR Doc. E9-21324, is corrected as follows:

1. On page 45757, column 2, in the preamble, under the caption DATES: , line 12, the language “§ 1.1502-13(f)(ii)(B)( 1 ) and ( 2 ) in effect” is corrected to read “§ 1.1502-13(f)(5)(ii)(B)( 1 ) and ( 2 ) in effect”.

2. On page 45758, column 1, in the preamble, under the paragraph heading “ 1. Results Prior to the Issuance of § 1.368-2(k) Regulations”, last line of the third paragraph of the column, the language “accomplished. See § 1.1502-13(a)(1)).” is corrected to read “accomplished. See § 1.1502-13(a)(1).”.

3. On page 45758, column 2, in the preamble, under the paragraph heading “ 2. Results After the Issuance of § 1.368-2(k) Regulations”, line 7 from the bottom of the first paragraph of the column, the language “of assets, and would no longer be” is corrected to read “of assets, and could no longer be”.

4. On page 45758, column 3, in the preamble, under the paragraph heading “ 5. Effective/Applicability Date”, line 10, the language “13(f)(ii)(B)( 1 ) and ( 2 ) in effect prior to” is corrected to read “13(f)(5)(ii)(B)( 1 ) and ( 2 ) in effect prior to”.

Caltrans requested a temporary change to the operation of the Commodore Schuyler F. Heim highway bridge, mile 4.9 at Long Beach, CA. The drawbridge navigation span provides a vertical clearance of 37 feet above Mean High Water in the closed-to-navigation position and 163 feet in the full open to navigation position. Under the governing drawbridge regulation, 33 CFR 117.147, the draw of the Commodore Schuyler F. Heim highway bridge, mile 4.9 at Long Beach, shall open on signal; except that, from 6:30 a.m. to 8 a.m. and 3:30 p.m. to 6 p.m. Monday through Friday except Federal holidays, the draw need not be opened for the passage of vessels. The opening signal for the Commodore Schuyler Heim Bridge is three prolonged blasts. The acknowledging signal is two prolonged blasts followed by one short blast when the draw will open immediately and five short blasts when the draw will not open immediately. VHF-FM Channel 13 (156.65 MHZ) or other assigned frequencies may be used. Navigation on the waterway is commercial, recreational, search and rescue, and law enforcement.

The drawspan will be secured at various elevations including the closed-to-navigation position from 7 p.m. on September 18, 2009 through 5 a.m. on October 5, 2009, to allow film industry use of the drawbridge. The alternative path around Terminal Island will be available for routine and emergency navigation. This temporary deviation has been coordinated with commercial and recreational waterway users. No objections to the proposed temporary deviation were raised.

Vessels that can transit the bridge, while in the closed-to-navigation position, should contact the Coast Guard Captain of the Port LA/LB, for information on waterway closures.

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

On February 11, 2009, we published a notice of proposed rulemaking (NPRM) entitled Security Zone; Naval Base Point Loma; San Diego Bay, San Diego, CA in the Federal Register (74 FR 6842). We received no comments on the proposed rule. There were no requests for a public meeting, therefore no meeting was held.

The U.S. Navy requested an expansion of an existing security zone. The new zone will allow for installation of water barriers to provide a line of demarcation and defensive measures as a safeguard from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature. The expanded security zone will entirely subsume a nearby existing security zone, which will be removed.

It was determined that Point B (32°42.48′ N, 117°14.17′ W) and Point C (32°42.17′ N, 117°14.00′ W) were plotted in the channel to the south entrance of Shelter Island. These points were brought out of the channel and the new coordinates are 32°42.48′ N, 117°14.22′ W (Point B) and 32°42.17′ N, 117°14.05′ W (Point C).

Point H (32°41.04′ N, 117°14.14′ W) was relocated to 32°41.17′ N, 117°13.97′ W. The original point caused the security zone to run along the shoreline and was deemed unnecessary.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

This determination is based on the size and location of the security zone. Vessels do not routinely operate for commercial purposes within the area encompassed by the security zone expansion, which is currently within a charted restricted area (33 CFR 334.870). Recreational vessels will not be allowed to transit through the established security zone.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the San Diego Bay.

This security zone will not have a significant economic impact on a substantial number of small entities because vessel traffic can pass safely around the security zone.

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

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

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

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

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

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

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

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

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

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

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

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

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

Regulatory History, 74 FR 44881 (August 31, 2009).

The Postal Service seeks to add a new product identified as Parcel Select & Parcel Return Service Contract 2 to the Competitive Product List. For the reasons discussed below, the Commission approves the Request.

On August 21, 2009, the Postal Service filed a formal request pursuant to 39 U.S.C. 3642 and 39 CFR 3020.30, et seq., to add Parcel Select & Parcel Return Service Contract 2 to the Competitive Product List. 1 The Postal Service asserts that the Parcel Select & Parcel Return Service Contract 2 product is a competitive product “not of general applicability” within the meaning of 39 U.S.C. 3632(b)(3). Id. at 1. The Request has been assigned Docket No. MC2009-40.

The Postal Service contemporaneously filed a contract related to the proposed new product pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. Id. The contract has been assigned Docket No. CP2009-61.

In support of its Request, the Postal Service filed the following materials: (1) A redacted version of the Governors' Decision authorizing the new product which also includes an analysis of Parcel Select & Parcel Return Service Contract 2 and certification of the Governors' vote;  2 (2) a redacted version of the contract which, among other things, provides (a) that the effective date of the contract is the day after the date on which the Commission issues all regulatory approvals, and (b) that the contract will expire on May 31, 2011, unless it is extended for an additional year;  3 (3) requested changes in the Mail Classification Schedule product list;  4 (4) a Statement of Supporting Justification as required by 39 CFR 3020.32;  5 (5) a certification of compliance with 39 U.S.C. 3633(a);  6 and (7) an application for non-public treatment of materials. 7

In the Statement of Supporting Justification, Daniel J. Barrett, Manager, Sales Strategy and Customer Support, Ground Shipping Services, asserts that the service to be provided under the contract will cover its attributable costs, make a positive contribution to coverage of institutional costs, and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs. Id., Attachment D. Thus, Mr. Barrett contends there will be no issue of subsidization of competitive products by market dominant products as a result of this contract. Id. W. Ashley Lyons, Manager, Regulatory Reporting and Cost Analysis, Finance Department, certifies that the contract complies with 39 U.S.C. 3633(a). See id., Attachment E.

The Postal Service filed much of the supporting materials, including the unredacted Governors' Decision, the unredacted contract, and supporting financial analysis, 8 under seal. In its application for non-public treatment of materials, the Postal Service maintains that the contract and related financial information, including the customer's name and the accompanying analyses that provide prices, terms, conditions, and financial projections, should remain confidential. Id., Attachment F.

In Order No. 288, the Commission gave notice of the two dockets, appointed a public representative, requested supplemental information, and provided the public with an opportunity to comment. 9 On August 27, 2009, the Postal Service filed a response to the Commission's request for supplemental information. 10

Comments were filed by the Public Representative. 11 No filings were submitted by other interested parties. The Public Representative states that the Postal Service's filing and the Parcel Select & Parcel Return Service Contract 2 agreement comply with applicable Commission rules of practice. Id. at 3. He also addresses the relationship between the data systems used to calculate costs in this case and the Postal Service's proposal to change that established methodology as “proposal fourteen” in Commission Docket No. RM2009-10. Specifically, he notes that “the Commission's determination on the costing methodology might impact the data supplied for the instant contract.” Id. at 4. However, the Public Representative “concede[s] that pricing for this PS&PRS NSA appears to fully comply with the three-pronged requirements of 39 U.S.C. 3633(a), and with the other pricing, cost coverage, and contribution provisions of title 39.” Id.

The Public Representative believes that the Postal Service has provided adequate justification for maintaining confidentiality in this case. Id. at 2. He also believes that because the contract is designed to help acquire new volume, the contract appears to benefit the general public. Id. at 5.

The Commission has reviewed the Request, the contract, the financial analysis provided under seal, the supplemental information filed by the Postal Service, and the comments filed by the Public Representative.

Statutory requirements. The Commission's statutory responsibilities in this instance entail assigning Parcel Select & Parcel Return Service Contract 2 to either the Market Dominant Product List or to the Competitive Product List. 39 U.S.C. 3642. As part of this responsibility, the Commission also reviews the proposal for compliance with the Postal Accountability and Enhancement Act (PAEA) requirements. This includes, for proposed competitive products, a review of the provisions applicable to rates for competitive products. 39 U.S.C. 3633.

Product list assignment. In determining whether to assign Parcel Select & Parcel Return Service Contract 2 as a product to the Market Dominant Product List or the Competitive Product List, the Commission must consider whether

The Commission is further required to consider the availability and nature of enterprises in the private sector engaged in the delivery of the product, the views of those who use the product, and the likely impact on small business concerns. 39 U.S.C. 3642(b)(3).

The Postal Service asserts that its bargaining position is constrained by the existence of other shippers who can provide similar services, thus precluding it from taking unilateral action to increase prices without the risk of losing volume to private companies. Request, Attachment D, at para. (d). The Postal Service also contends that it may not decrease quality or output without risking the loss of business to competitors that offer similar ground shipping services. Id. It further states that the contract partner supports the addition of the contract to the Competitive Product List to effectuate the negotiated contractual terms. Id. at para. (g). Finally, the Postal Service states that the market for ground shipping services is highly competitive and requires a substantial infrastructure to support a national network. It indicates that large carriers serve this market. Accordingly, the Postal Service states that it is unaware of any small business concerns that could offer comparable service for this customer. Id. at para. (h).

No commenter opposes the proposed classification of Parcel Select & Parcel Return Service Contract 2 as competitive. Having considered the statutory requirements and the support offered by the Postal Service, the Commission finds that Parcel Select & Parcel Return Service Contract 2 is appropriately classified as a competitive product and should be added to the Competitive Product List.

Cost considerations. The Postal Service presents a financial analysis showing that Parcel Select & Parcel Return Service Contract 2 ensures that the contract covers its attributable costs, does not result in subsidization of competitive products by market dominant products, and increases contribution from competitive products.

Based on the data submitted, the Commission finds that Parcel Select & Parcel Return Service Contract 2 should cover its attributable costs (39 U.S.C. 3633(a)(2)), should not lead to the subsidization of competitive products by market dominant products (39 U.S.C. 3633(a)(1)), and should have a positive effect on competitive products' contribution to institutional costs (39 U.S.C. 3633(a)(3)). Thus, an initial review of proposed Parcel Select & Parcel Return Service Contract 2 indicates that it comports with the provisions applicable to rates for competitive products.

In his comments, the Public Representative raises the issue of the pending Parcel Select and Parcel Return Service methodological changes. See Docket No. RM2009-10, Proposal Fourteen. In the instant filing, the Postal Service correctly uses the current approved methodology concerning Parcel Select and Parcel Return Service Transportation and Mail Processing costs. Nevertheless, the Commission believes the changes presented in Proposal Fourteen, if approved, would not harm the potential profitability of this contract.

Application for non-public treatment. The Postal Service believes that the 10-year period of non-public treatment, as specified in 39 U.S.C. 3007.30, is insufficient to protect customer identifying information. Notice, Attachment F, at 6. It asserts that such information should be protected permanently and requests that the Commission enter an order extending that duration indefinitely.

The request is premature. Should the need for non-public treatment remain due to ongoing business relationships, the Postal Service may submit a motion to the Commission to extend the duration at the appropriate time.

Other considerations. The Postal Service shall notify the Commission if the contract is extended for an additional year. If the agreement terminates earlier than anticipated, the Postal Service shall inform the Commission prior to the new termination date. The Commission will then remove the product from the Competitive Product List.

In conclusion, the Commission approves Parcel Select & Parcel Return Service Contract 2 as a new product. The revision to the Competitive Product List is shown below the signature of this order and is effective upon issuance of this order.

It is ordered:

1. Parcel Select & Parcel Return Service Contract 2 (MC2009-40 and CP2009-61) is added to the Competitive Product List as a new product under Negotiated Service Agreements, Domestic.

2. The Postal Service shall notify the Commission if the contract is extended for an additional year and update the Commission if termination occurs prior to that date, as discussed in this order.

3. The Secretary shall arrange for the publication of this order in the Federal Register .

In FR Doc. E9-18616 of August 7, 2009 (74 FR 39762), there are technical errors that we are identifying and correcting in the Correction of Errors section below. The corrections in this notice are effective as if they were included in the final rule published on August 7, 2009. Accordingly, the correction to the average length of stay value for CMG 0501, tier 2, in Table 1 on page 39768 of the final rule (74 FR 39762) is effective October 1, 2009. This change is applicable for IRF discharges occurring on or after October 1, 2009 and on or before September 30, 2010 (FY 2010). The correction to the preamble text at the top of the middle column of page 39791 of the final rule is effective January 1, 2010.

In the August 7, 2009 final rule (74 FR 39762), the average length of stay value for CMG 0501, tier 2, in Table 1 on page 39768 should have been listed as 10, but was inadvertently listed as 0. In the FY 2010 IRF PPS proposed rule (74 FR 21052 at 21057), we proposed the average length of stay value for CMG 0501, tier 2, as 10. The proposal was based on FY 2007 IRF claims data, which was the most recent available data we had at the time. The updated FY 2008 data that we used for the final rule contained no IRF cases for CMG 0501, tier 2. When there are not enough cases in a particular CMG and tier (referred to herein as a “payment group”) to calculate an average length of stay, we combine the cases in that payment group with the next highest-paying payment group to calculate an average length of stay value. Accordingly, for the final rule, we used the average length of stay value of 10 from CMG 0501, tier 1 for CMG 0501, tier 2, but in Table 1 we inadvertently indicated a value of 0 instead of 10. Thus, we are correcting Table 1 to show the average length of stay value for CMG 0501, tier 2, is 10.

In addition, we are correcting certain language in the preamble that could be misread, resulting in confusion with the regulatory requirements that must be met with respect to the preadmission screening required under § 412.622(a)(4)(A). Section 412.622(a)(4)(A) requires that the comprehensive preadmission screening be conducted by a licensed or certified clinician(s) designated by the rehabilitation physician described in § 412.622(a)(3(iv) within 48 hours immediately preceding the IRF admission. Our policy is that the IRF personnel conducting the screening must be a clinician or group of clinicians who are appropriately trained and qualified to assess the patient's medical and functional status, assess the risk for clinical and rehabilitation complications, and assess other aspects of the patient's condition both medically and functionally. As we stated in the final rule, we do not believe that non-clinical personnel can adequately perform these assessments. In the final rule (74 FR 39791), we stated that, “* * * we believe that the IRF personnel involved in collecting the information for the preadmission screening must be appropriately trained and qualified to assess the patient's medical and functional status, assess the risk for clinical and rehabilitation complications, and assess other aspects of the patient's condition both medically and functionally” (emphasis added). As the discussion in which this sentence was embedded only pertained to clinical staff assessments under § 412.622(a)(4)(A), we should have utilized terminology that referenced “clinical staff” and “assessment,” not “IRF personnel” and “collecting.” Consistent with the discussion in which the statement appears, we meant to convey that the IRF clinical staff conducting the preadmission screening must be trained and qualified to make the appropriate assessments. The appropriate use of non-clinical staff in the collection of the information that is used in the § 412.622(a)(4)(A) assessment is beyond the scope of the preamble discussion. Therefore, to eliminate any confusion, we are revising the sentence in the middle column at the top of page 39791 of the final rule to read, “* * * we believe that the clinician(s) conducting the preadmission screening must be appropriately trained and qualified to assess the patient's medical and functional status, assess the risk for clinical and rehabilitation complications, and assess other aspects of the patient's condition both medically and functionally.”

In FR Doc. E9-18616 of August 7, 2009 (74 FR 39762), make the following corrections:

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). We also ordinarily provide a 30-day delay in the effective date of the provisions of a rule in accordance with section 553(d) of the APA (5 U.S.C. 553(d)). However, we can waive both notice and comment procedures and the 30-day delay in effective date if the Secretary finds, for good cause, that such procedures are impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons into the notice.

The policies and payment methodology expressed in the FY 2010 IRF PPS final rule (74 FR 39762) have previously been subjected to notice and comment procedures. This correction notice provides technical corrections to the FY 2010 final rule that was promulgated through notice and comment rulemaking, and does not make substantive changes to the policies or payment methodologies that were expressed in the final rule. Therefore, we find it unnecessary to undertake further notice and comment procedures with respect to this correction notice. We also believe that it is in the public interest (and would be contrary to the public interest to do otherwise) to waive notice and comment procedures and the 30-day delay in effective date for this notice. This correction notice is intended to ensure that the FY 2010 final rule accurately reflects the policies expressed in the final rule, and that the correct information is made available to the public prior to the effective dates of the final rule. Therefore, we find good cause to waive notice and comment procedures and the 30-day delay in the effective date for this correction notice.

The House of Representatives introduced H.R. 1442 to complete the codification of title 46, United States Code, “Shipping,” as positive law, by reorganizing and restating the laws previously set forth in the appendix to title 46. On October 6, 2006, H.R. 1442 was enacted as Public Law 109-304. This rule changes prior references in the Commission regulations to reflect the codification and involves no substantive changes. This rule also corrects typographical errors in the Commission regulations.

Because this rule involves no substantive changes, the Commission finds, pursuant to 5 U.S.C. 553(b)(B), that notice and public procedure on this rule is unnecessary. The Chairman of the Commission certifies, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. et seq., that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.

This rule is not a “major rule” under 5 U.S.C. 804(2).

This is a synopsis of the Commission's Report and Order, MB Docket No. 09-147, adopted September 22, 2009, and released September 23, 2009. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. This document will also be available via ECFS ( http://www.fcc.gov/cgb/ecfs/ ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-478-3160 or via e-mail http://www.BCPIWEB.com. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional review Act, see 5 U.S.C. 801(a)(1)(A).

On September 3, 2009, we published a final rule (74 FR 45674) that implemented pertinent refuge-specific regulations and amended other existing refuge-specific regulations pertaining to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2008-2009 season. This rule became effective on the day of publication, September 3, 2009. In the rule, several of our amendatory instructions for adding or revising paragraphs in the regulatory text section were not clear. This document corrects error that arose from those unclear instructions. In addition, this document contains the following corrections to the regulatory text:

In the State of Alabama, the correction for Cahaba National Wildlife Refuge reflects that conditions B.2., B.3., and B.7. apply rather than B.8. which does not exist. The correction for Mountain Longleaf National Wildlife Refuge reflects that conditions A.1. through A.4. apply rather than A.5. which does not exist.

In the State of Georgia, the correction for Savannah National Wildlife Refuge reflects the addition of a sentence to C.10. that was inadvertently omitted.

In the State of Maryland, the correction for Patuxent Research Refuge reflects removal of extraneous characters at the end of condition D.18.vi. inadvertently applied during XML coding of the document.

We find good cause to waive notice and comment on this correction, under 5 U.S.C. 553(b)(B), and the 30-day delay in effective date under 5 U.S.C. 553(d). Notice and comment are unnecessary because these corrections are minor, editorial changes. The substance of the regulations remains unchanged. Therefore, this correction is being published as a final regulation and is effective upon publication.

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

The 2009 TAC of Pacific cod allocated to vessels catching Pacific cod for processing by the inshore component of the Central Regulatory Area of the GOA is 21,277 metric tons (mt) as established by the final 2009 and 2010 harvest specifications for groundfish of the GOA (74 FR 7333, February 17, 2009).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2009 TAC of Pacific cod allocated to vessels catching Pacific cod for processing by the inshore component of the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 20,277 mt, and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by vessels catching Pacific cod for processing by the inshore component of the Central Regulatory Area of the GOA. Delaying the closure of Pacific cod after the Regional Administrator has determined that the directed fishing allowance has been reached is a conservation concern. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 24, 2009.

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

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