The Drug-Free Workplace Act of 1988 [Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701, et seq. ] was enacted as a part of omnibus drug legislation on November 18, 1988. Federal agencies issued an interim final common rule to implement the act as it applied to grants [54 FR 4946, January 31, 1989]. The rule was a subpart of the Governmentwide common rule on nonprocurement suspension and debarment. The agencies issued a final common rule after consideration of public comments [55 FR 21681, May 25, 1990].

The agencies proposed an update to the drug-free workplace common rule in 2002 [67 FR 3266, January 23, 2002] and finalized it in 2003 [68 FR 66534, November 26, 2003]. The updated common rule was redrafted in plain language and adopted as a separate part, independent from the common rule on nonprocurement suspension and debarment. Based on an amendment to the drug-free workplace requirements in 41 U.S.C. 702 [Pub. L. 105-85, div. A, title VIII, Sec. 809, Nov. 18, 1997, 111 Stat. 1838], the update also allowed multiple enforcement options from which agencies could select, rather than requiring use of a certification in all cases.

When it established Title 2 of the CFR as the new central location for OMB guidance and agency implementing regulations concerning grants and agreements [69 FR 26276, May 11, 2004], OMB announced its intention to replace common rules with OMB guidance that agencies could adopt in brief regulations. OMB began that process by proposing [70 FR 51863, August 31, 2005] and finalizing [71 FR 66431, November 15, 2006] Governmentwide guidance on nonprocurement suspension and debarment in 2 CFR part 180.

As the next step in that process, OMB proposed for comment [73 FR 55776, September 26, 2008] and finalized [28 FR 28149, June 15, 2009] Governmentwide guidance with policies and procedures to implement drug-free workplace requirements for financial assistance. The guidance requires each agency to replace the common rule on drug-free workplace requirements that the agency previously issued in its own CFR title with a brief regulation in 2 CFR adopting the Governmentwide policies and procedures. One advantage of this approach is that it reduces the total volume of drug-free workplace regulations. A second advantage is that it collocates OMB's guidance and all of the agencies' implementing regulations in 2 CFR.

As the OMB guidance requires, IMLS is taking two regulatory actions. First, we are removing the drug-free workplace common rule from 45 CFR part 1186. Second, to replace the common rule, we are issuing a brief regulation in 2 CFR part 3186 to adopt the Governmentwide policies and procedures in the OMB guidance.

Taken together, these regulatory actions are solely an administrative simplification and are not intended to make any substantive change in policies or procedures. In soliciting comments on these actions, we therefore are not seeking to revisit substantive issues that were resolved during the development of the final common rule in 2003. We are inviting comments specifically on any unintended changes in substantive content that the new part in 2 CFR would make relative to the common rule at 45 CFR part 1186.

Under the Administrative Procedure Act (5 U.S.C. 553), agencies generally propose a regulation and offer interested parties the opportunity to comment before it becomes effective. However, as described in the “Background” section of this preamble, the policies and procedures in this regulation have been proposed for comment two times—one time by Federal agencies as a common rule in 2002 and a second time by OMB as guidance in 2008—and adopted each time after resolution of the comments received.

This direct final rule is solely an administrative simplification that would make no substantive change in IMLS policy or procedures for drug-free workplace. We therefore believe that the rule is noncontroversial and do not expect to receive adverse comments, although we are inviting comments on any unintended substantive change this rule makes.

Accordingly, we find that the solicitation of public comments on this direct final rule is unnecessary and that “good cause” exists under 5 U.S.C. 553(b)(B) and 553(d) to make this rule effective on September 7, 2010 without further action, unless we receive adverse comment by August 9, 2010. If any comment on unintended changes is received, it will be considered and, if warranted, we will publish a timely revision of the rule.

OMB has determined this rule to be not significant for purposes of E.O. 12866.

This regulatory action will not have a significant adverse impact on a substantial number of small entities.

This regulatory action does not contain a Federal mandate that will result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector of $100 million or more in any one year.

This regulatory action will not impose any additional reporting or recordkeeping requirements under the Paperwork Reduction Act.

This regulatory action does not have Federalism implications, as set forth in Executive Order 13132. It will not have substantial direct effects 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.

Section 2606 (16 U.S.C. 3839bb-5) of the 2008 Farm Bill (Pub. L. 110-246) authorizes a new VPA-HIP. VPA-HIP provides a new opportunity for State and tribal governments to apply for grants to encourage owners and operators of privately-held farm, ranch, and forest land to voluntarily make that land available for access by the public for wildlife-dependent recreation, including hunting, fishing, and other compatible recreation and to improve fish and wildlife habitat on their land under programs administered by State or tribal governments.

Only State and tribal governments are eligible for VPA-HIP. Grants will be awarded through a competitive Request for Applications (RFA) process. State and tribal governments may propose to use VPA-HIP grant funding to expand existing public access programs or create new public access programs, or provide incentives to improve habitat on enrolled program lands. As specified in the 2008 Farm Bill, funding priority will be given to applications that will use the grant money in a public access program to address the following program objectives:

(1) Maximize participation by landowners;

(2) Ensure that land enrolled in the program has appropriate wildlife habitat;

(3) Provide incentives to strengthen wildlife habitat improvement efforts on Conservation Reserve Enhancement Program (CREP) land;

(4) Supplement funding and services from other Federal, State, tribal government, or private resources that is provided in the form of cash or in-kind services; and

(5) Provide information to the public about the location of public access land.

CCC will evaluate how applications enhance fish and wildlife habitat on lands and waters made available for public access and use additional evaluation criteria, as specified in this rule and in the RFA, to select the applications that best support these program goals. The 2008 Farm Bill authorizes $50 million for VPA-HIP through 2012. We anticipate that more applications will be received than available funding, so this will be a competitive grant program.

Currently, 26 States have public access programs for hunting, fishing, and other related activities. These programs provide rental payments and other incentives, such as technical or conservation services to landowners who allow the public to hunt, fish or otherwise appropriately recreate on their land. An unknown number of tribal governments have similar public access programs. The majority of the existing programs have limited scope and budgets; most existing programs have an annual budget of under a million dollars per year. The goals of these existing programs include providing access for wildlife-associated recreation, wildlife management, helping local economies that depend on revenue from hunters, and encouraging conservation. The funding provided by VPA-HIP will help State and tribal governments address many issues that can greatly increase access and recreational experiences. Grant recipients will be able to use the funding to provide higher rental payments, provide technical and conservation services to landowners, and increase acreage enrolled for public access while fulfilling grant requirements under VPA-HIP. VPA-HIP will specifically give priority to applications that will use the funds to maximize landowner participation and public use, and make information about public access land widely available. Provisions requiring appropriate wildlife habitat will address concerns about limited wildlife population associated with poor or inadequate wildlife habitat. Nothing in VPA-HIP or regulation preempts liability laws that may apply to activities on any property related to grants made in this program.

The 2008 Farm Bill uses the term “farm, ranch, or forest land” and only provides that the grants allowed by VPA-HIP be directed at access to “privately-held” lands. In implementing VPA-HIP, for consistency with other USDA programs, the “farmland” definition in this rule draws on the definition used in general for Farm Programs that is in 7 CFR 718.2 and which basically encompasses all land on any property that includes cropland including forest land used for the production of timber. There is no need for a separate definition for “ranch land” and hence the “ranch land” definition will simply refer back to the “farmland” definition. In this rule, the term “forest land” is given the same meaning that the USDA Forest Service uses in its Forest Inventory and Analysis Program. This definition is documented in the Forest Service General Technical Report WO-78, “Forest Resources of the United States, 2007.” We are adding the definition into 7 CFR 1455.2(b). These definitions should be broad enough to cover within them all properties that are within the intended scope of the 2008 Farm Bill and of this rule. In turn, this rule defines “privately-held” land to mean land owned or operated by an individual or entity that is not a government or Tribe or subdivision or agency of a government or Tribe. For example, State and tribal governments cannot use funding from VPA-HIP to encourage public access on local government land, State-owned forest land, or land owned by a public university.

The terms “State” and “State government” as used in this rule mean any State or local government, including, but not limited to State, city, town, or county government, State Universities, and other units of State government. This is consistent with the way the term “State government” is used in other CCC programs.

The term “tribal government” refers to Federally-recognized tribes as defined in section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e)). This definition is consistent with other CCC and FSA regulations.

The term “wildlife-dependent recreation” refers to activities such as hunting, fishing, wildlife observation, photography, and environmental education and interpretation.

Only State and tribal governments may apply for grants under VPA-HIP.

On behalf of CCC, FSA will publish periodic VPA-HIP RFA's via http://www.grants.gov. Applications will be evaluated and selections made using the criteria specified in this rule and in the RFA.

The result of a successful application will be a grant for up to 3 years, consistent with the time limits in the 2008 Farm Bill and the terms of the grant. Successful applicants will be required to sign a grant agreement with CCC. The grant agreement will include reporting and recordkeeping requirements that are consistent with other FSA and CCC programs. Under the 2008 Farm Bill CCC is, to the maximum extent practicable, to make $50 million of CCC funds available under VPA-HIP through the 2012 fiscal year (which ends in September 30, 2012). This is not, however, an entitlement program, and it is possible that not all of the funds will be expended should there not be sufficient desirable applications offered. All projects are subject to the approval of CCC and the regulation reserves CCC's right to reject any and all projects for any reason deemed sufficient to the agency.

As discussed earlier, the 2008 Farm Bill requires that CCC give priority to applications that address five program objectives. These program objectives were used to develop the criteria that will be used to evaluate applications and select grant recipients. This section describes those evaluation criteria.

The first program objective required by the 2008 Farm Bill is that CCC give priority to applications that “maximize participation by offering a program the terms of which are likely to meet with widespread acceptance among landowners.” Maximizing voluntary participation and achieving widespread acceptance can include activities and performance goals which may include but are not limited to:

• Increasing the number of acres made available for access by the public,

• Increasing the number of acres of appropriate fish and wildlife habitat,

• Increasing the number of landowners participating in the in the State and tribal government programs.

Measuring or assessing impact of program delivery can be done by activities such as participation surveys, the number of acres enrolled, and the amount and nature of inquiry correspondence. A successful application should describe how the program will address maintaining and enhancing wildlife habitat, any foreseen enrollment barriers, as well as describing any financial incentives the program may provide to landowners. As discussed earlier, the landowners incentivized by this program must be private land owners. Incentives may include, but are not limited to compensation for public access to land, and technical and conservation services provided.

A second program objective required by the 2008 Farm Bill that will be used as an evaluation criterion is “to ensure that the land enrolled under the State or tribal government program has appropriate wildlife habitat.” State and tribal governments with existing wildlife-dependent public access programs such as walk-in hunting, open fields, bird watching access, or similar programs must ensure that land enrolled in these programs have appropriate habitat for the wildlife. The application should describe how the grantee will ensure that the habitat for the wildlife on land already enrolled in the program will be maintained throughout the duration of the grant. State and tribal governments that are initiating new wildlife-dependent public access programs should demonstrate that they have the expertise to ensure that they can successfully carry out the objectives of VPA-HIP.

State and Tribal, as applicable, Wildlife Action Plans may help States and Tribes to identify likely opportunities. Congress charged each State with developing a Statewide wildlife action plan to make the best use of the Federal funds provided through certain Federal programs. These plans should provide vital information to help conserve wildlife and vital natural areas before they become more rare and more costly to protect. State fish and wildlife agencies developed these strategic action plans by working with a broad array of partners, including scientists, sportsmen, conservationists and members of the community.

The wildlife action plans were required to assess the condition of each State's wildlife and habitats, identify the problems they face, and outline the actions that are needed to be conserve them over the long term. The wildlife action plans identify a variety of actions aimed at preventing wildlife from declining to the point of becoming endangered. By focusing on conserving the natural lands and clean waters that provide habitat for wildlife, the plans have important benefits for wildlife and people.

In addition to specific conservation projects and actions, the plans describe many ways we can educate the public and private landowners about effective conservation practices. Finally, the plans also identify the information needed to improve knowledge about what kinds of wildlife are in trouble so we can decide what action to take.

A third program objective required by the 2008 Farm Bill that will be used as an evaluation criteria is “to strengthen wildlife habitat improvement efforts” on land enrolled in CREP. CREP is a CCC program that supports the Conservation Reserve Program (CRP) in some States with additional funding for specific environmental activities. Under CREP, CCC enters into an agreement with State officials who commit financial and other resources to target areas of important environmental need. Currently, 31 States have CREP agreements with CCC. VPA-HIP applications that explain in detail how their application will strengthen wildlife habitat improvement efforts on land enrolled according to a CREP agreement will, all else being equal, receive priority over applications that do not provide such detailed explanation where CREP agreements are in place. States and Tribes without CREP agreements will not be able to address this objective, but will still be eligible to apply for and receive grants based on other applicable evaluation criteria.

State and tribal governments that choose to integrate CREP with public access should describe how increased public access for the purposes of wildlife dependent recreation will benefit both VPA-HIP and CREP. Integrations of conservation activities with hunting, fishing, and wildlife viewing may allow for land management that balances game species population growth and fosters a higher quality of habitat conditions. State and tribal governments should cite the specific activities and conservation practices that they intend to target, such as increasing and improving CREP wildlife food plots, nesting areas, shallow water areas for wildlife, and wildlife habitat corridors.

Activities and practices described in the application should provide support for the healthy development and maintenance of appropriate wildlife habitat. State or tribal governments must ensure that their VPA-HIP application is consistent with the purposes and provisions of CRP and CREP when the enrolled acres coincide. State or tribal governments that consider using VPA-HIP funding as a “cost-share” as opposed to an incentive or other form of payment, need to be aware that the CRP legislative authority and the implementing regulations in 7 CFR 1410.40 require that a CRP participant refund USDA's CRP or CREP cost-share assistance if it receives any other Federal cost-share assistance. Funding provided through VPA-HIP as a cost-share would, for the purposes of 7 CFR 1410.40, be considered to be such other Federal cost-share assistance.

A fourth program objective required by the 2008 Farm Bill that will be used as an evaluation criterion is the extent to which the proposed program will “use additional Federal, State, tribal government, or private resources in carrying out the program.” The application should specify how those resources will be used for various activities and planning that strengthen the feasibility of program success and help achieve intended benefits. Many programs have similar goals and intended benefits that complement the VPA-HIP goals. Applications that include combining VPA-HIP funds with other program resources that have similar goals, such as State public access programs, Natural Resource Conservation Service's Wildlife Habitat Incentive Program, wildlife and conservation non-government organizations, will, all else being equal, be given a priority over applications that do not.

These other program resources may be either monetary or in-kind services. In-kind services can aid program delivery and planning and must be quantified in units such as hours of staff time (labor value), office space (rental value), technical or conservation services (service value), equipment (product value), or the like.

For State and tribal governments that choose to include additional State or local funds in their application, commitments must be documented by an appropriate authority that will be supplying those resources.

The fifth program objective required by the 2008 Farm Bill that will be used as an evaluation criterion is “to make available to the public the location of land enrolled.” A common barrier to participation in existing State public access programs is a lack of detailed information on where such land is and how to legally access it. For State and Tribal VPA-HIP programs, public disclosure of private lands enrolled in VPA-HIP may be conveyed through a variety of media including, but not limited to, Web site listings, printed listings or map books, online access maps, and recorded telephone information.

After State and tribal governments submit applications, FSA, on behalf of CCC, will conduct an initial screening of all applications to determine whether the applicant is eligible and whether the application is complete and sufficiently responsive to the requirements specified in the RFA so as to allow for an informed review. Incomplete applications will not be evaluated further. CCC will notify applicants of the status of their initial screening, if time allows. Applicants may revise their applications and re-submit them prior to the published deadline if there is sufficient time to do so. FSA will appoint an inter-agency review panel to evaluate the applications. State and tribal government applications will be considered using the same selection criteria.

If the amount requested in the applications exceeds the available funding, FSA may use additional criteria for selection which could include, but not be limited to:

• The distribution of funds between State and tribal governments;

• The distribution of funds between new programs and existing programs; and

• The need to target funding to address specific types of wildlife dependent recreation and public access.

We expect interest in VPA-HIP to exceed the available funding. Through VPA-HIP, grants to any individual State or Tribe will be no more than $2 million per year and no less than $75,000 per year.

We considered allocating the funding equally across all eligible applicants, or providing funding only to applicants that already have public access programs, but decided that it would be more effective to have a fully competitive RFA process. Since the 2008 Farm Bill requires that we give “priority” to applicants that address certain VPA-HIP goals, we decided that providing funding on a competitive basis to applicants that best meet those objectives would be appropriate.

The evaluation criteria will be carefully constructed to fairly consider expected benefits from both existing and new programs so as not to favor existing programs over applications for new programs. For example, an existing program might score high on a feasibility criterion and have specific methods in place to demonstrate wildlife habitat monitoring, but a new program might be able to demonstrate greater expected benefits, since that program would be starting from a baseline of zero benefits.

Successful applicants will be required to sign an agreement with CCC and provide detailed budget and schedule information. The agreement will require periodic financial and program achievement reports.

The agreement will also require compliance with other USDA regulations that apply to grants, including civil rights, restrictions on lobbying, and drug-free workplace. Grantees will be required to comply with audit requirements in 7 CFR part 3052.

During the term of the grant, the grantee will be required to obtain prior approval for any changes to the scope, objectives, or funding allocation of the approved agreement. Failure to obtain prior approval of such changes may be considered a violation and in such case the grantee may be required to return all grant funds. Funds cannot be used to pay for buildings or fixed equipment. The list of prohibited grant funding uses is specified in the rule and will be specified in the agreement.

The 2008 Farm Bill requires that, before a grant may be awarded, FSA examine migratory bird hunting season dates for an applicant who is a State government. If a State government has different opening dates for migratory bird hunting for residents versus non-residents, the grant amount will be reduced by 25 percent. Inconsistent migratory bird hunting opening dates will not be an evaluation factor in selecting applications; it will be taken into account only after applications are selected. This reduction will not be applied to applications made by tribal governments, as specified in the 2008 Farm Bill.

This reduction will apply to all applications by State governments, even for applications when the purpose of the grant is not related to migratory bird hunting in a State. Opening dates must remain consistent throughout the term of the grant. If opening dates for migratory bird hunting are changed by a State during the term of the grant such that the dates are inconsistent for residents and non-residents, 25 percent of the grant funding must be refunded.

The 2008 Farm Bill provides that VPA-HIP does not preempt a State or tribal government law including any State or tribal liability law.

The government-wide debarment and suspension (non procurement) provisions of the Federal Acquisition Regulations (FAR), as adopted in 7 CFR 3017, will apply only to contractors and subcontractors. If a grantee chooses to use grant awards to contract or sub-contract with a person or company, then that person or company must not have been suspended or debarred under the FAR prior to or during contracting.

The appeals provisions in 7 CFR parts 11 and 780 will apply to VPA-HIP. Highly erodible land and wetland conservation provisions in 7 CFR part 12 will apply to VPA-HIP. Any State or tribal government that violates highly erodible land and wetland conservation provisions will be ineligible for program benefits; if it is determined after a payment is issued for VPA-HIP that a violation occurred, then repayment of the benefit plus interest would be required.

As part of implementing VPA-HIP, FSA will conduct outreach efforts to inform the Tribal Governments of federally-recognized tribes about VPA-HIP. Two primary mechanisms for initiating the outreach efforts will include the National Congress of American Indians (NCAI) and the contact lists of federally recognized tribes.

CCC is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule. CCC is authorized by section 2904 of the 2008 Farm Bill to issue an interim rule effective on publication with an opportunity for comment.

This rule has been determined to be significant and was reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. The cost benefit analysis is summarized below and is available from the contact information listed above.

The 2008 Farm Bill provides CCC funds through VPA-HIP for fiscal years 2009 through 2012; total available funding is $50 million. Based on the current number of States (at least 15) that could meet all five evaluation criteria with existing public access programs, we expect to receive applications for more than the full amount of available funding.

The benefits from a public access program stem from the value placed on hunting, fishing, and other outdoor recreation activities are a function of the number of times these activities are undertaken and the satisfaction from these opportunities. The benefits will be where landowners permit access. VPA-HIP benefits are the sum of:

• Value from increased access to hunting, fishing, and outdoor recreation opportunities;

• Savings from reduced transaction costs between landowners and outdoor recreationists;

• Enhanced wildlife populations from expanded and improved wildlife habitat; and

• Expanded economic activity such as equipment sales, and increased restaurant and motel expenditures.

VPA-HIP is expected to provide $50 million, the total authorized funding, to States and tribal governments. The expected benefits to hunters and other users of public access land due to the resulting expansions and improvements to State and tribal government public access programs are expected to exceed $51 million.

This rule is not subject to the Regulatory Flexibility Act since CCC is not required to publish a notice of proposed rulemaking for this rule. CCC is authorized by section 2904 of the 2008 Farm Bill to issue an interim rule effective on publication with an opportunity for comment.

The State or Tribal government applying for VPA-HIP funds will be required to prepare a Programmatic Environmental Assessment (PEA) in a manner consistent with the provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations for compliance with NEPA (7 CFR part 799). The PEA must assess the current public access program, if one exists, and the proposed alternative policies for implementation of the current or proposed public access program if funding is received from FSA. The purpose of the PEA is to evaluate the impacts of expanding public access, including but not limited to, those associated with general ranch maintenance, conservation efforts, weed control, fire protection, roads, fences, and parking area maintenance. Consistent with 40 CFR 1501.4(c), the PEA will be used to determine if the receipt of Federal funds will constitute a major Federal action significantly affecting the quality of the human environment and if an Environmental Impact Statement needs to be prepared.

This program is not subject to Executive Order 12372, which requires consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published in the Federal Register on June 24, 1983 (48 FR 29115).

This interim rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule does not preempt State and or local laws, and regulations, or policies unless they present an irreconcilable conflict with this rule. Before any judicial action may be brought concerning the provisions of this rule, appeal provisions of 7 CFR parts 11 and 780 must be exhausted. As specified in the 2008 Farm Bill, this interim rule does not preempt a State or tribal government law, including any State or tribal government liability law.

The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

The policies contained in this rule do not impose substantial unreimbursed direct compliance costs on Indian tribal governments or have tribal implications that preempt tribal law.

USDA will undertake, within 6 months after this rule becomes effective, a series of at least six regulation Tribal consultation sessions to gain input by Tribal officials concerning the impact of VPA-HIP on Tribal governments, communities, and individuals. These sessions will establish a baseline of consultation for future actions, should any become necessary, regarding the VPA-HIP regulations. Reports from these sessions for consultation will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning the VPA-HIP regulation and will provide additional venues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal leaders and their representatives concerning ways to improve VPA-HIP in Indian country.

Tribal governments will be notified of VPA-HIP by direct notification of the Tribal elected official via regular mail; by e-mail notification to the Tribal elected official; and by notifying the National Congress of American Indians and other intertribal organizations relevant to VPA-HIP. Additional notification will be given to key intertribal organizations working with individual Indian farmers and through outreach to nonprofit and community based organizations known to work the Tribal producers. FSA will also ensure that review panel membership described in this rule has appropriate representation reflecting Tribal governments and intertribal organizations knowledgeable of recreational use on Tribally-owned lands.

This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L. 104-4). In addition, CCC is not required to publish a notice of proposed rulemaking for this rule. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The title and number of the Federal assistance program in the Catalog of Federal Domestic Assistance, to which this rule applies, is the Voluntary Public Access and Wildlife Habitat Incentive Program—10.093.

The regulations in this rule are exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. chapter 35), as specified in section 2904 of the 2008 Farm Bill, which provides that these regulations be promulgated and the programs administered without regard to the Paperwork Reduction Act.

CCC is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

This amendment adopts a new AD for the specified AAI crosstubes installed on the specified model helicopters. This action requires replacing certain AAI serial-numbered crosstubes installed on these model helicopters. This amendment is prompted by AAI's discovery of a defect in a batch of raw material used in the manufacture of these crosstubes. Preliminary tests indicate that surface cracking to the inner wall of the tubing was introduced during the manufacturing process. There have been no failures reported in the field. The defect was discovered during the forming operation at AAI. This condition, if not corrected, could result in failure of a crosstube and subsequent collapse of the landing gear.

We have reviewed AAI Alert Service Bulletin No. AA-10012, dated March 5, 2010 (ASB), which advises of a possible defect in the material used to manufacture the crosstube, part number (P/N) 212-320-103, which is also included in AAI Low Skid Gear Assembly Kits, P/N 412-320-500 and 412-320-502. The ASB specifies locating the serial number (S/N) of each crosstube, and replacing, within 25 hours time-in-service (TIS), each crosstube within the S/N range of AA-574 through AA-628, by following the procedures contained in the Instructions for Continued Airworthiness AA-01136.

This unsafe condition is likely to exist or develop on other helicopters of these same type designs with an affected crosstube installed. Therefore, this AD is being issued to prevent failure of a crosstube and subsequent collapse of the landing gear. This AD requires, within 25 hours TIS, replacing any affected crosstube with an airworthy crosstube.

The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the structural integrity of the helicopter. Therefore, replacing an affected crosstube with an airworthy crosstube is required within 25 hours TIS, and this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD will affect 18 helicopters, and replacing each affected crosstube will take about 5 work hours at an average labor rate of $85 per work hour. Required parts will cost about $4,925 per helicopter. Based on these figures, we estimate the total cost impact of the AD on U.S. operators to be $96,300.

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2010-0565; Directorate Identifier 2010-SW-034-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light 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 with FAA personnel concerning this AD. Using the search function of our docket web site, you can find and read the comments to any of our dockets, including the name of the individual who sent the comment. You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

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 the regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the 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 an economic evaluation of the estimated costs to comply with this AD. See the AD docket to examine the economic evaluation.

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.

History

In the autumn of 2009, a major construction project at Bishop International Airport, Flint, MI, was completed that entailed removing Runway 5/23, which was not an operating runway, and installing a “south parallel” taxiway along the eastern portion of Runway 9/27. Prior to construction, airport runway configuration made it possible for aircraft to mistake the 3,900 foot Runway 23 for the 7,200 foot Runway 27. There was also no capability for an aircraft to taxi to the approach end of Runway 27 from the south side of the airport without either back taxiing on the runway or crossing the runway and taxiing on the north side parallel to the approach end. As a result of the runway removal and taxiway installation, the airport layout changed enough to affect the ARP location, which defines the Class C airspace area's center point.

This action amends Title 14 Code of Federal Regulations (CFR) part 71 by amending the ARP information contained in the legal description of the Bishop International Airport, Flint, MI, Class C airspace area to reflect current National Airspace System data. The correct ARP information, which the Class C airspace area is centered around, is latitude 42°57′56″ N., longitude 83°44′41″ W. Although the construction project affected the ARP, there are no other changes to the dimensions or altitudes of the Class C airspace area. Therefore, notice and public comment under 5 U.S.C. 553(b) are unnecessary.

Class C airspace areas are published in paragraph 4000 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Class C airspace area listed in this document will be published subsequently in the Order.

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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class C airspace at Bishop International Airport, Flint, MI.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

On March 25, 2010, the FAA published in the Federal Register a notice of proposed rulemaking to modify Class D and E airspace at Yuma, AZ (75 FR 14382). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E airspace designations are published in paragraph 5000 and 6002 respectively, of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR part 71.1. The Class D and E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class D airspace, and Class E airspace designated as surface area in the Yuma, AZ, area. The Yuma MCAS-Yuma International Airport airspace area will be modified to ensure the containment of aircraft arriving and departing Somerton Airport, Somerton, AZ. This action enhances the safety and management of instrument flight rules operations in the Yuma, AZ, area. This action will also make a minor correction to the legal description for both Class D and E airspace to coincide FAA's National Aeronautical Charting Office.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Yuma, AZ.

History

On November 18, 2009, the FAA published in the Federal Register a NPRM to establish Class E airspace extending upward from 700 feet above the surface at Bryce Canyon, UT (74 FR 59492). The comments received prompted the FAA on April 26, 2010, to publish in the Federal Register a supplemental notice of proposed rulemaking to establish Class E surface airspace at Bryce Canyon, UT (75 FR 21532). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received in favor of the airspace change.

Class E airspace designations are published in paragraph 6002 and 6005, respectively, of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface, at Bryce Canyon Airport, to accommodate IFR aircraft executing new RNAV GPS SIAPs at the airport. This action is necessary for the safety and management of IFR operations at the airport.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Bryce Canyon Airport, Bryce Canyon, UT.

History

On March 25, 2010, the FAA published in the Federal Register a notice of proposed rulemaking to establish controlled airspace at Lucin, UT (75 FR 14383). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6006 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E en route domestic airspace 1,200 feet above the surface, at the Lucin, UT VORTAC, to accommodate the management of IFR operations by vectoring IFR aircraft from en route airspace to Salt Lake City, UT. This action enhances the safety of the National Airspace System.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace in the Lucin, UT area.

On April 1, 2010, the FAA published in the Federal Register a final rule to establish RNAV route T-284 for the Houston, TX, terminal area (75 FR 16336), Docket No. FAA-2009-0878. Subsequent to publication, the Manager, Houston Air Route Traffic Control Center requested the recently published route be withdrawn pending redesign. The FAA intends to resubmit a redesigned route as a new rulemaking proposal at a future date.

Accordingly, pursuant to the authority delegated to me, the FAA withdraws the final rule published in the Federal Register April 1, 2010 (75 FR 16336) [FR Doc. 2010-7245].

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.

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 part 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.

The electronic file of this document is available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.

One of our highest priorities is to improve the efficiency of our hearing process for the Old Age, Survivors, and Disability Insurance (OASDI) programs under title II of the Social Security Act (Act) and the Supplemental Security Income (SSI) program under title XVI of the Act. The increasing workloads at the hearing level of our administrative review process have been well-publicized, and we are actively preparing for further increases in the number of hearing requests. Eliminating the hearing backlog is a “moral imperative.”  1 We face significant challenges in dealing with the historically large number of pending hearing requests, and we must schedule a greater number of hearings to reduce the hearing backlog. The ALJs who conduct the hearings are dedicated, hard working professionals; they will play a central role in helping us reduce the backlog. However, some ALJs do not schedule or hold a minimally acceptable number of hearings, and our current rules are arguably unclear as to certain scheduling issues.

Therefore, we are revising our rules to state that “we” (the agency) have the authority to set the time and place for a hearing before an ALJ. We are adding this authority as a 3-year pilot program so we may test it and evaluate its effectiveness, as explained below. We will conduct this pilot to test the effect of our use of this authority, consistent with due process rights of claimants, on the timely scheduling of hearings and on reducing the hearing backlog. This change is a part of our broader commitment to maintaining a hearing process that results in accurate, high-quality decisions for claimants. Through the pilot, we hope to determine whether extending the authority to schedule hearings to other agency personnel, including management officials, allows us to better manage the number of hearings held and to keep our hearing process as efficient as possible.

Under our current rules, ALJs set the time and place for hearings. In practice, each ALJ provides hearing office staff with a schedule of times that he or she is available to hold hearings. The hearing office staff then coordinates scheduling of the hearing with the claimant, the claimant's representative, medical and vocational experts, and hearing recorders. We expect that the rules changes we are making here will help us reduce the number of pending hearing requests by giving us more flexibility to set the time and place for hearings. 2 We anticipate using this pilot authority primarily in a very small number of situations where an ALJ is scheduling so few hearings that he or she is compromising our efforts to make timely and accurate decisions for people applying for benefits. One impetus for proposing these rules was a New England judge who scheduled no hearings for many years. Because we expect that virtually all ALJs will work with us to schedule hearings in a timely manner, administrative action under this regulation should be an exceptionally rare occurrence.

The United States Government Accountability Office (GAO) recognized that achieving productivity goals was critical if we are to reach our goal of eliminating the backlog by the end of fiscal year (FY) 2013. 3 Our Inspector General and the GAO reported that meeting our ALJ hiring and productivity goals will be critical in reducing the pending hearings to fewer than 466,000  4 cases by the end of FY 2013. 5

We expect the number of hearing requests to continue to grow as the number of new applications for benefits increases. In FY 2009, we saw a 13.8 percent increase in the number of initial disability claims. We also experienced an increase in the number of requests for a hearing before an ALJ—a 5.7 percent increase over the number of requests in FY 2008. We are anticipating an even larger increase in the number of hearing requests in FY 2010, corresponding to the increase in initial claims in FY 2009.

We will consult with the appropriate Hearing Office Chief Administrative Law Judge (HOCALJ) and the ALJ before we exercise the pilot authority provided in these rules to determine if there are any reasons why we should not set the time and place of the ALJ's hearings, such as the ALJ being on leave for an extended period or insufficient staff support to prepare cases for hearings. If the HOCALJ does not state a reason that we believe justifies the limited number of hearings scheduled by an ALJ, we will then consult with the ALJ before deciding whether to exercise our authority to set the time and place for the ALJ's hearings. If the HOCALJ states a reason that we believe justifies the limited number of hearings scheduled by the ALJ, we will not exercise our authority to set the time and place for the ALJ's hearings. We will work with the HOCALJ to identify those circumstances where we can assist the ALJ and address any impediment that may affect the scheduling of hearings.

Our decision to set the time and place of a hearing in no way interferes with the ALJ's role to develop, hear, and decide cases. The ALJ will be in the best position to help us identify cases that are ready for a hearing, as well as those that need additional development before a hearing is scheduled. In making this change to our rules as a pilot, we intend only to test whether this authority improves the quality of service to claimants awaiting a hearing. We are committed to maintaining a hearing process that results in accurate, high-quality decisions for claimants. We will carefully monitor the application of these rules to ensure that the hearing process remains effective and fair.

In the rare instances where we will need to exercise this authority to schedule hearings for an ALJ, we will determine when and where an ALJ will hold a hearing. As is our practice when we schedule and hold all hearings, before we schedule a hearing, we will first consider those factors that affect scheduling, such as the availability of all parties and the development of the case file. We expect that the clarity provided by these final rules will allow issues that have arisen in the past to be quickly and effectively resolved between an ALJ and the HOCALJ.

We also expect that the changes we are making in these final rules will assist our development of an electronic scheduling initiative, which includes an automated calendaring function. Electronic hearings scheduling will improve our efficiency by integrating the schedules of ALJs, experts, claimants, claimants' representatives, and hearing recorders, and the availability of hearing rooms.

As stated above, to ensure that these rules operate as intended, we are adding a provision to these rules to explain that the authority to allow us to set the time and place of the hearing will be implemented as a temporary 3-year pilot program, so we may test the provisions of these rules and evaluate their effectiveness. By using this authority to schedule hearings, we expect that we will be able to increase productivity and help ALJs manage their caseloads. We expect these final rules will help us reduce the hearing request backlog and ensure that claimants are given timely hearings. As we work to improve the hearing process, we are committed to maintaining a system that results in accurate, high-quality decisions for claimants.

We are conducting this 3-year pilot program to evaluate the capacity of these rules to help us achieve our mission. This change is a part of our broader commitment to maintaining a hearing process that results in accurate, high-quality decisions for claimants. During the course of the pilot program, we will carefully examine ALJ productivity, caseload distribution, staffing requirements, the efficiency of the scheduling process, the efficacy of both inter- and intra-office consultation, and the proportional effect on the hearing request backlog.

In the notice of proposed rulemaking (NPRM) published at 73 FR 66564 (November 10, 2008), we provided the public with a 60-day period in which to comment on the proposed changes. That comment period ended on January 9, 2009. We received 141 comments on the proposed rules. We carefully considered all of the comments. As some of the comments were long and quite detailed, we have condensed, summarized, and paraphrased them in the following discussions. However, we have tried to present all views adequately and to carefully address all of the relevant and significant issues raised by the commenters. We generally did not address comments that are outside the scope of this rulemaking proceeding.

Comment: The most prevalent comment we received was a concern that allowing us to schedule hearings limited an ALJ's qualified decisional independence. Many commenters believed that deciding when a claim is ready for a hearing, as well as the type and scope of development necessary prior to the hearing, should be solely within the discretion of the ALJ. Some commenters noted that the decision regarding the length of time reserved for each hearing should also be solely within the discretion of the ALJ. A number of commenters also objected to our expectation that each ALJ would process at least 500 cases per year to eliminate the backlog of claims at the hearing level. One commenter feared that we would set so many hearings for an ALJ that he or she would spend all or most of his or her time “on the bench” and would be unable to perform the other required duties.

Response: We agree that ALJs have qualified decisional independence, but we disagree with the commenters' views that these rules changes infringe on that qualified decisional independence. “Qualified decisional independence” means that ALJs must be impartial in conducting hearings. They must decide cases based on the facts in each case and in accordance with agency policy as laid out in regulations, rulings, and other policy statements. Further, because of their qualified decisional independence, ALJs make their decisions free from agency pressure or pressure by a party to decide a particular case, or a particular percentage of cases, in a particular way. The agency may not take actions that abridge the duty of impartiality owed to claimants when ALJs hear and decide claims.

Contrary to what some of the commenters seem to assume, however, qualified decisional independence does not prevent appropriate management oversight of our administrative review process. ALJs' qualified decisional independence does not prevent us from establishing administrative practices and programmatic policies that ALJs must follow, such as the rules that we are adopting here. Our authority to establish such practices and policies means that ALJs are entirely subordinate to the agency on matters of law and policy. That view has been repeatedly endorsed by the Federal courts.

Furthermore, as some of the commenters pointed out, the Federal courts also have recognized that reasonable efforts to increase the production levels of ALJs are not an infringement of qualified decisional independence and that the setting of reasonable production expectations, as opposed to fixed quotas, does not in itself violate the Administrative Procedure Act. As one court observed, “[I]n view of the significant backlog of cases, it was not unreasonable to expect ALJs to perform at minimally acceptable levels of efficiency. Simple fairness to claimants awaiting benefits required no less.”  6 We included a rough figure of 500 cases per year to help provide context; to avoid misunderstanding, the figure was removed from these final rules. Contrary to the assumptions of some commenters, these final rules do not establish a “fixed quota” that will require ALJs to schedule and hear a specific number of cases. Nevertheless, we expect all of our ALJs to perform at reasonable levels of efficiency. The changes in these final rules are intended to accomplish that goal in the rare instances where we may find it necessary to exercise the authority under these rules. The changes will help us manage the hearings process more efficiently, consistent with our obligations to the public we serve, and in ways that do not impinge on an ALJ's qualified decisional independence.

We recognize the challenging job facing our ALJs: holding a sufficient number of hearings and rendering accurate, well-reasoned decisions. But the reality of the current hearing backlog and the increasing number of hearing requests require an acceptable level of production from all of our employees, including ALJs. Nothing in these rules exerts pressure on ALJs to decide claims in a particular way, precludes an ALJ from developing the evidence, or interferes with the ALJ's conduct of a hearing. These rules simply change an administrative practice to ensure the best and most prompt service to those who request a hearing.

However, we also want to ensure that these rules do not result in any unintended and unforeseen consequences. Consequently, in order to address the commenters' concerns, we have decided to make four changes to final sections 404.936 and 416.1436.

First, we have revised final sections 404.936(a) and 416.1436(a) to provide that we “may” set the time and place of the hearing. We made this change in order to clarify that we will not set the time and place of every hearing, as some of the commenters seemed to fear.

Second, we have revised final sections 404.936(c) and 416.1436(c) to clarify that we will consult with the ALJ in order to determine the status of case preparation before we set the time and place of the hearing.

Third, we have added new final sections 404.936(g) and 416.936(g) to state that we will consult with the appropriate HOCALJ and ALJ before we exercise this authority to determine if there are any reasons why we should not set the time and place of the ALJ's hearings. If the HOCALJ does not state a reason that we believe justifies the limited number of hearings scheduled by an ALJ, we will then consult with the ALJ before deciding whether to begin to exercise our authority to set the time and place for the ALJ's hearings. If the HOCALJ states a reason that we believe justifies the limited number of hearings scheduled by the ALJ, we will not exercise our authority to set the time and place for the ALJ's hearings. We will work with the HOCALJ to identify those circumstances where we can assist the ALJ and address any impediment that may affect the scheduling of hearings.

Finally, we have added new final sections 404.936(h) and 416.1436(h) to clarify that we will implement these rules as a pilot program. As a result, the provisions of the rules that authorize us to set, and, if necessary, to change, the time and place of the hearing and that require us to consult with the ALJ to determine the status of case preparation will be effective for a 3-year period from the effective date of these final rules. We may, however, terminate these final rules earlier or extend them beyond that date by notice of a final rule in the Federal Register . We expect that these four changes will make it clear that we will implement these final rules in a manner that does not affect the ALJs' qualified decisional independence and that results in a hearing process that continues to be effective and fair.

Comment: One commenter asserted that no other agency “interferes” with the authority of an ALJ to set the time and place for hearings, while another commenter sought to distinguish the work of our ALJs from ALJs in other Federal agencies where the agency has authority to schedule hearings. Other commenters suggested that our hearing process should remain different from the hearing processes in other agencies, based on the nature of the work we perform.

Response: Several Federal agencies employ ALJs, and some of those agencies have exercised their authority to schedule hearings for ALJs. There is no uniform practice among the agencies for scheduling hearings. In some agencies, the agency has specifically delegated the authority to set the time and place for a hearing to an ALJ or equivalent adjudicator. In other agencies, the agency has retained its authority to set the time and place of the hearing. 7 Although the subject matter and the format of administrative hearings may vary among agencies, we do not believe that the nature of the duties our ALJs perform requires that we specifically delegate the authority to set the time and place for the hearing to the ALJ.

Comment: Many comments suggested that these rules would result in the unwarranted denial or allowance of claims by ALJs. Several commenters believed that the result of these rules would be an increase in the issuance of favorable decisions by ALJs, based on the commenters' assertions that favorable decisions can be more quickly processed. One commenter believed this would be particularly true in cases involving more difficult factual situations or in cases requiring complicated legal analysis. Two commenters suggested the opposite—that these rules would result in an increase in un favorable decisions by ALJs. Several commenters stated that these rules could prevent ALJs from properly developing the administrative record and could either encourage or discourage ALJs from calling necessary medical or vocational experts to testify at the administrative hearing.

Response: Nothing in these rules either explicitly or implicitly pressures an ALJ to decide any claim in a particular manner. In order to make that clear, as noted above, we have included two consultation provisions in the final rules. First, in final sections 404.936(c) and 416.1436(c), we provide that we will consult with the ALJ in setting the time and place for the hearing, in part to determine the status of case preparation. We also have added new final sections 404.936(g) and 416.1436(g), where we explain that before we exercise the authority to set the time and place for an ALJ's hearings, we will consult with the appropriate HOCALJ to determine if there are any reasons why we should not set the time and place of the ALJ's hearings. If the HOCALJ does not state a reason that we believe justifies the limited number of hearings scheduled by the ALJ, we will then consult with the ALJ before deciding whether to begin to exercise our authority to set the time and place for the ALJ's hearings. If the HOCALJ states a reason that we believe justifies the limited number of hearings scheduled by the ALJ, we will not exercise our authority to set the time and place for the ALJ's hearings. We will work with the HOCALJ to identify those circumstances where we can assist the ALJ and address any impediment that may affect the scheduling of hearings.

We believe that these consultation provisions will enhance our goal to improve the efficiency of our hearing process. In addition to these specific provisions, we also provide in final sections 404.936(c) and 416.1436(c) that we will consult with the ALJ to determine whether the claimant or any other party will appear in person or by video teleconferencing. 8 We will also ascertain the availability of medical or vocational experts the ALJ determines are required before we schedule a hearing. Nothing in these rules will either encourage or discourage ALJs from calling any necessary experts or witnesses.

As we have stated, we will carefully monitor quality, productivity, and accuracy in those situations in which we exercise the authority in these rules. We also plan to evaluate the effectiveness of our pilot program by the end of 3 years to ensure that we properly implement these rules and that these rules do not result in any unintended and unforeseen consequences. We believe that our ALJs will continue to perform their duties in a professional manner and will decide all claims before them consistent with the applicable law, regulations, and agency policy.

Comment: Several commenters suggested the proposed changes would not help us increase the efficiency of our hearing process or reduce the number of pending hearings. Three commenters suggested these rules will not decrease the hearing backlog because allowing us to schedule hearings will merely result in a greater delay between the hearing date and issuing the ALJ decision. Many commenters suggested that scheduling additional hearings without ALJ input would result in increased rescheduling and an increased need for supplemental hearings. By contrast, another commenter felt that these rules would result in fewer supplemental hearings. Additional commenters believed that these rules will result in increased remands from the Appeals Council and Federal district courts because claims will not be fully developed before a hearing is scheduled.

Response: As previously stated, we have revised these rules to provide that we will consult with the ALJ in setting the time and place for the hearing. Thus, we do not believe that claims will proceed without proper development or need additional rescheduling. We have no interest in using the authority in these rules in a manner that would result in further delay of hearings. For the majority of ALJs, these rules will result in no change to the way their hearings are currently scheduled. We will exercise our authority to schedule hearings only where an ALJ is not scheduling a sufficient number of hearings. Finally, we will monitor the success of this regulation on an agency-wide basis to ensure that it does not produce unintended consequences, such as those suggested by the comments.

Comment: As previously stated, numerous commenters offered suggestions for other actions we could take that they felt would be more effective in meeting our goals of efficiency in scheduling hearings and reducing the hearing backlog. Most prevalent among these comments was the suggestion that additional hiring, both of support staff and ALJs, would be the most effective tool in reaching our productivity goals.

Response: We agree that additional hiring will also help us meet our goal of reducing the hearings backlog. We hired a significant number of ALJs in FY 2008 and in FY 2009, and we plan to hire additional ALJs and support staff in FY 2010. However, “merely adding employees, while critical to our success, will not solve all of our problems.”  9

Comment: Many commenters expressed concern about our proposal to “institute nationwide centralized scheduling,” noting that centralized scheduling would not take into account all variables in scheduling a hearing, including the availability of a claimant, or a claimant's representative, a hearing monitor, security personnel, and any necessary experts, as well as access to a hearing room.

Response: These commenters misinterpreted our proposed rules. We are not instituting nationwide centralized scheduling. We recognize the importance of coordinating the schedules of the hearing participants, including the ALJ. As mentioned above, our electronic scheduling initiative anticipates integrating the schedules of ALJs, experts, claimants, claimants' representatives, and hearing recorders, and the availability of hearing rooms to more efficiently set hearing times and dates.

Comment: Several commenters suggested that any centralized scheduling process, even within a hearing office, would prevent an ALJ from using “creative” measures to schedule hearings when circumstances change unexpectedly or at the last minute.

Response: Nothing in these final rules is meant to curtail efforts by ALJs who currently schedule a sufficient number of hearings from maintaining that high level of production, including the use of measures that will allow the scheduling of additional hearings. We encourage those persons who schedule the hearings, whether the ALJ or another person in the hearing office, to avail themselves of those measures which allow for the most efficient scheduling of hearings.

Comment: Several commenters expressed fear that the agency would not consider an ALJ's personal schedule (vacation time, significant personal events, illness, etc.) when it sets the time and place for the hearing.

Response: We clearly state in the rules that we will consult with the ALJ when we set the time and place for the hearing. 10 It would serve no purpose to schedule a hearing when the required ALJ is unavailable and would certainly not meet our goal of increasing the number of scheduled hearings. These final rules will not impinge on any employees' ability to use properly requested leave. We will continue to comply with all of our obligations regarding the use of leave by ALJs and other employees.

Comment: Several commenters expressed concern over the practicalities of implementing these rules. Some commenters stated the rules did not indicate which specific persons would exercise the authority to set the time and place for a hearing. Other commenters noted that although the preamble limited application of these rules to ALJs with low production, the rules language itself was not so limited. Additional comments were concerned with the “fairness” of the scheduling of hearings and of choosing certain ALJs for application of these rules.

Response: In many cases, the person who sets the time and place will continue to be the ALJ. In those cases where the agency sets the time and place for a hearing, the employee actually scheduling the hearing will be determined by the make-up of the hearing office, the particular situation leading to the exercise of this authority, and other factors. We anticipate that an agency management official will exercise this authority.

For those ALJs who are already setting a sufficient number of claims for hearing, there is no need for the agency to schedule hearings. Our goal is to increase productivity and ensure that we meet the needs of the public. Productive ALJs will continue to use whatever scheduling method they currently use. As noted above, we will use the authority in this pilot to schedule hearings only for those ALJs who do not schedule a sufficient number of hearings. The decision to have the agency schedule hearings will be based solely on productivity and efficiency.

As explained above, these rules clarify our procedures for exercising our authority to set the time and place of an ALJ's hearing. We will consult with the appropriate HOCALJ and the ALJ to determine if there are any reasons why we should not set the time and place of the ALJ's hearings, such as the ALJ being on leave for an extended period or insufficient staff support to prepare cases for hearings. If the HOCALJ does not state a reason that we believe justifies the limited number of hearings scheduled by the ALJ, we will then consult with the ALJ before deciding whether to begin to exercise our authority to set the time and place for the ALJ's hearings. If the HOCALJ states a reason that we believe justifies the limited number of hearings scheduled by the ALJ, we will not exercise our authority to set the time and place for the ALJ's hearings. We will work with the HOCALJ to identify those circumstances where we can assist the ALJ and address any impediment that may affect the scheduling of hearings.

Comment: A few commenters expressed concern regarding an ALJ's ability to reschedule hearings. One commenter suggested that these rules did not allow an ALJ to postpone or reschedule a hearing once it had been set by the agency. Several commenters recognized the ALJ's continued ability to reschedule hearings, but believed that this ability would defeat the purpose of the rules, as an ALJ could merely reschedule the hearing in any claim.

Response: We did not propose to make any changes to those portions of 20 CFR 404.936(a) and 416.1436(a), which address adjourning the hearing or reopening it to receive additional evidence, nor do we make any changes to those clauses in these final rules. Determining the need to postpone or adjourn a hearing remains within the discretion of an ALJ. Further, we did not propose any changes to the rules regarding the ALJ's authority to determine whether a claimant has good cause for objecting to the time or place of the hearing. We expect ALJs to act as ethical and responsible adjudicators. An ALJ who repeatedly and systematically reschedules hearings scheduled for him or her without reasonable cause would not meet that expectation.

Comment: A few commenters suggested that we proposed these rules as a way of demonstrating “discriminatory animus” to force the resignation or retirement of older judges, those with poor health, or “women judges, who, more than men, will have scheduling issues revolving around child care.”

Response: We absolutely reject these comments. Nothing in these rules can be reasonably interpreted to demonstrate discriminatory animus. It is our policy to ensure that “every employee enjoys a non-hostile work environment free of discrimination or harassment of any kind” and that “[a]ll employment decisions * * * will be made exclusively on the basis of job-related criteria * * *.”  11 Nothing in these rules suggests we are, in any way, altering our commitment to a workplace free of discrimination, and, in fact, our ALJ corps has become significantly more diverse since we were able to hire from candidates certified by the Office of Personnel Management in 2008.

Comment: Numerous commenters suggested that if there are ALJs who are not fully performing their duties, then we already have tools for discipline and reprimand of those ALJs without the need for changing our existing rules. These commenters suggested that dealing with certain ALJs in the broader manner of these rules decreases both morale and productivity.

Response: We agree that we have the administrative authority to discipline ALJs who are not performing their duties, and we will continue to use those tools as necessary. However, our current rules, which state that the ALJ has the sole responsibility for setting the time and place for a hearing, unnecessarily impede our ability to schedule a sufficient number of hearings. We believe that a more uniform distribution of the hearing workload in each hearing office will result in an increase in morale, particularly for those ALJs already conducting a sufficient number of hearings.

Comment: One commenter suggested we delay implementation of these final rules pending a report by the GAO on the number of cases currently awaiting hearing. The commenter stated that we should allow supplemental comments on the proposed rules upon receipt of the GAO report.

Response: The GAO issued its report, “Social Security Disability: Additional Performance Measures and Better Cost Estimates Could Help Improve SSA's Efforts to Eliminate Its Hearings Backlog,” in September 2009. We agreed with the GAO's conclusion that ALJ productivity is a critical factor in meeting our goal of eliminating the hearing backlog. We are well aware of the critical nature of the backlog of pending hearings and do not believe that any further delay before implementing these rules is warranted.

These final rules will no longer be effective 3 years after the date on which they become effective, unless we terminate them earlier or extend them beyond that date by notice of a final rule in the Federal Register .

We have consulted with the Office of Management and Budget (OMB) and determined that these rules meet the criteria for a significant regulatory action under Executive Order 12866. Thus, they were subject to OMB review.

The Office of the Chief Actuary estimates that these final rules will increase the program costs of the OASDI and SSI programs by $20 million. This revised estimate is significantly lower than the $1,225 billion estimate in the NPRM. The revised estimate is based on the 3-year pilot program and a new assumption that the scheduling revision would be much more limited and only used in rare circumstances.

We assumed the change would result in scheduling for only one ALJ in FY 2011 plus one additional ALJ each year thereafter. This assumption would result in an annual increase of 50 decisions for each ALJ in that year and subsequent years. Thus, in 2013 there would be 150 extra decisions. We assume that the total number of decisions will continue beyond the expiration of the 3-year pilot program, but that the effects decline gradually over the 2014-20 period. The initial projection assumed about 1,000 additional ALJ dispositions in 2010 rising to about 10,000 additional dispositions in 2015 and later.

The table below presents our estimates of the increases in OASDI benefit payments and Federal SSI payments during the 3-year pilot program over the fiscal year period 2011-20 resulting from the increases in ALJ dispositions assumed to occur as a result of the rules changes. The estimates are consistent with the assumptions underlying the President's FY 2011 Budget, and they assume that the final rules will be effective on October 1, 2010.

We certify that these final rules would not have a significant economic impact on a substantial number of small entities as they affect individuals only. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

These rules does not create any new, or affect any existing, collections and, therefore, does not require OMB approval under the Paperwork Reduction Act.

Regulatory Information

On May 11, 2010, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulation for Marine Events; Mattaponi River, Wakema, VA in the Federal Register (75 FR 90). We received no comments on the proposed rule. No public meeting was requested, and none was held.

The Mattaponi Volunteer Rescue Squad will be sponsoring a series of power boat racing events titled the “Mattaponi Madness Drag Boat Event.” This section will be effective on the following dates: August 28, 2010 through August 29, 2010. The Coast Guard anticipates that this section will only be enforced between 9 a.m. to 7 p.m. on August 28, 2010. If the event is postponed due to inclement weather, then this section will be enforced on August 29, 2010 between 9 a.m. and 7 p.m. The races will be held on the Mattaponi River immediately adjacent to the Rainbow Acres Campground, King and Queen County, Virginia. The power boat races will consist of approximately 45 vessels conducting high speed straight line runs along the river and parallel to the shoreline. A fleet of spectator vessels is expected to gather near the event site to view the competition. Due to the high speed of 45 vessels, the regulation is necessary to provide for the safety of participants, spectators and other transiting vessels by temporarily restricting vessel traffic in the event area during the power boat races.

The Coast Guard received no comments in response to the NPRM. No public meeting was requested and none was held.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this regulation will prevent traffic from transiting a portion of the Mattaponi River during the events, the effect of this regulation will not be significant due to the limited duration that the regulation will be in effect and the advance notification that will be made to the maritime community via marine information broadcast so mariners can adjust their plans accordingly. Additionally, the regulated area has been designed to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit the regulated area between heats and when the Coast Guard Patrol Commander deems it is safe to do so.

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: owners or operators of vessels intending to transit this section of the Mattaponi River from 9 a.m. to 7 p.m. on August 28, 2010 or on August 29, 2010. This rule would not have a significant economic impact on a substantial number of small entities for the following reasons: (i) Although the regulated area will apply to a three-quarter mile segment of the Mattaponi River, traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander between races; (ii) in the case where the Patrol Commander authorizes passage through the regulated area during the event, vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course; (iii) before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under ADDRESSES .

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. Publication of an NPRM would be impracticable because the event would occur before the rulemaking process would be completed. Because of the dangers posed by the pyrotechnics used in this fireworks display, the safety zone is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the safety concerns noted, it is in the public interest to have these regulations in effect during the event, which will occur less than 30 days after the publication of this rule.

On July 17 & 18, 2010, the Havana Chamber of Commerce will be conducting a high speed boat race between mile 119.7 and mile 120.3 on the Illinois River. This event presents safety hazards to the navigation of vessels between mile 119.7 and mile 120.3, extending the entire width of the river. Because of the dangers posed by the pyrotechnics used in this fireworks display, the safety zone is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area.

The Coast Guard is establishing a safety zone for all waters of the Illinois River, Mile 119.7 to 120.3, extending the entire width of the river. Entry into this zone is prohibited to all vessels and persons except participants and those persons and vessels specifically authorized by the Captain of the Port Upper Mississippi River. This rule will be enforced from 10 a.m. until 7 p.m. CDT on July 17 & 18, 2010. The Captain of the Port Upper Mississippi River will inform the public through local notice to mariners of all safety zone changes and enforcement periods.

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 rule is not considered significant because it will only be in effect for a limited time period. Furthermore, advance notifications to the marine community will be made through local notice to mariners and the River Industry Bulletin Board (RIBB) at http://www.ribb.com.

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 the Illinois River, Mile 119.7 to 120.3 after 10 a.m. until 7 p.m. CDT on July 17 & 18, 2010. This safety zone will not have a significant economic impact on a substantial number of small entities because this rule will only be in effect for a limited period of time.

If you are a small business entity and are significantly affected by this regulation, please contact LT Rob McCaskey, Sector Upper Mississippi River at 314-269-2541.

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

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

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

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

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

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

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

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

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

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

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

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

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

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. Publication of an NPRM would be impracticable because the event would occur before the rulemaking process would be completed. Because of the dangers posed by the pyrotechnics used in this fireworks display, the safety zone is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

The San Francisco Giants will sponsor the San Francisco Giants Baseball Game Promotion on July 16, 2010, on the navigable waters of McCovey Cove, in San Francisco Bay, off of San Francisco, CA. The fireworks display is meant for entertainment purposes. This safety zone is issued to establish a temporary restricted area on the waters surrounding the fireworks launch site during loading of the pyrotechnics, and during the fireworks display. This restricted area around the launch site is necessary to protect spectators, vessels, and other property from the hazards associated with the pyrotechnics on the fireworks barges. The Coast Guard has granted the event sponsor a marine event permit for the fireworks display.

The Coast Guard is establishing a temporary safety zone centered at the fireworks launch site, which will be located in position 37°46′38.46″ N, 122°23′1.67″ W (NAD 83). During the set up of the fireworks and until the start of the fireworks display, the temporary safety zone applies to the navigable waters around the fireworks site within a radius of 100 feet. From 10:00 p.m. until 10:15 p.m., the area to which the temporary safety zone applies will increase in size to encompass the navigable waters around the fireworks site within a radius of 1,000 feet. From 10:15 p.m. until 10:30 p.m., the safety zone will only apply to the navigable waters around the fireworks site within a radius of 100 feet.

The effect of the temporary safety zone will be to restrict navigation in the vicinity of the fireworks site while the fireworks are set up, and until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the fireworks barge to ensure the safety of participants, spectators, and transiting vessels.

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 and executive orders.

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

Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. Additionally, vessel traffic can pass safely around the area, and the safety zone will encompass only a small portion of the waterway for a limited period of time. The entities most likely to be affected are pleasure craft engaged in recreational activities.

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

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

This rule may affect owners and operators of pleasure craft engaged in recreational activities and sightseeing. This rule will not have a significant economic impact on a substantial number of small entities for several reasons: (i) Vessel traffic can pass safely around the area, (ii) vessels engaged in recreational activities and sightseeing have ample space outside of the effected portion of the areas off San Francisco, CA to engage in these activities, (iii) this rule will encompass only a small portion of the waterway for a limited period of time, and (iv) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.

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

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

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

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

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

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

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

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

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

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

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

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

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

The projects to repair and restore the Truman Home are part of the National Park Service Centennial Initiative, which was introduced in May 2007. The initiative is a nine year plan to improve facilities and services in the National Park Service for the 100th anniversary of the agency in 2016. One of the main goals is stewardship of natural and cultural resources in our National Parks, including rehabilitation, restoration and maintenance of treasured cultural resources such as the Truman Home. The home is a Victorian-style mansion which was built in 1867 and became part of the National Park System in 1983. It served as the residence of Harry S Truman, 33rd President of the United States from 1919 until his death in 1972.

During the closure, we completed four projects: installation of a new HVAC system, installation of a fire suppression system, repair of structural deficiencies, and rehabilitation of walls, ceilings and historic wall covering materials. Before these construction projects, we removed and stored the historic furnishings to protect them from accidental damage from fine dust caused by construction activities.

We removed historic wallpaper from the dining room and upstairs bedroom areas for cleaning, repairing, and reinstallation by a paper conservator. Plaster located in many areas throughout the home failed as a result of deterioration and exposure to moisture which caused ceilings to buckle, and walls to either bulge or crack.

The existing HVAC system installed in 1985 failed to maintain a stable environment in the Truman Home. This compromised the longevity of not only the home's infrastructure, but also the thousands of artifacts on exhibit and in storage within the home. We installed three HVAC units to stabilize the interior environment. Since the project required removal of flooring on the second floor and attic to install ductwork, we used the opportunity for access to the floor cavities to install a fire suppression system.

The temporary closure of the Truman Home to visitors ended on June 1, 2010, making it possible for the public to again visit this historic property (36 CFR 7.94; 70 FR 51239). The regulation is no longer necessary and should be removed. Since accepting public comment on this rule would be unnecessary and contrary to the public interest, we find under the Administrative Procedure Act that it is not necessary to publish a proposed rule. For the same reasons, we find that the rule can become effective immediately under the criteria in the Administrative Procedure Act.

This document is not a significant rule and the Office of Management and Budget has not reviewed this rule under Executive Order 12866. We have made the assessments required by E.O. 12866 and the results are given below.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The area restricted through the rulemaking was closed only during the Truman Home repair, preservation and protection construction activities stabilizing the structure, replacing the HVAC systems and adding a fire suppression system, and is now safe for access by the public.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The closure was confined to one building located within a unit of the National Park System, which is neither managed nor occupied by any other agency.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. The rule was confined to the closure for public safety and protection of the historic resource, does not regulate any financial programs or matters and is being removed.

(4) This rule does not raise novel legal or policy issues. Closure of a historic structure for restoration is a normal procedure for assuring public safety, minimizing interruption of the restoration process, and protection of the building and contents while construction is ongoing, and the needed restoration has been accomplished.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The economic effects of this rule are local in nature and negligible in scope. The primary purpose of this rule is to close the Truman Home during preparation and completion of necessary construction activities. Removal of the restriction is necessary in order to allow public access once again.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or more. This rule will allow the public to visit the interior of the Truman Home during the closure.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions. There were no costs associated with the removal of this section of the CFR.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The primary purpose of the interim rule was to implement a closure to allow necessary construction activities to proceed safely and efficiently in order to carry out the protection and preservation of the Truman Home structure. This rule will not change the ability of United States based enterprises to compete in any way.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. The restrictions under this regulation do not have a significant effect or impose an unfunded mandate on any agency or on the private sector. This rule applies only to federal parkland administered by the National Park Service at Truman Home, and no costs will be incurred by any non-federal parties.

Under the criteria in Executive Order 12630, this rule does not have significant takings implications. This rule does not apply to private property, or cause a compensable taking, so there are no takings implications.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This regulation will not have a substantial direct effect on the states, or on the distribution of power and responsibilities among the various levels of government. The rule addresses public access to the Truman Home structure at Harry S Truman National Monument. The affected land is under the administrative jurisdiction of the National Park Service.

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

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

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

The Handbook for NPS Director's Order 12 contains a listing of Categorical Exclusions. Section 3.4 D(2) of the Director's Order 12 Handbook provides that “minor changes in programs and regulations pertaining to visitor activities” may be categorically excluded under NEPA. The revision will have no effect on use, adjacent land ownerships or land uses, or adjacent owners or occupants. Visitor access has already resumed, and the only effect of this rule is to remove an obsolete regulation. Completion of the environmental screening form shows that the adoption of this regulation to remove the closure of the Truman house would result in no measurable adverse environmental effects.

We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under the National Environmental Policy Act. As such, a categorical exclusion is the appropriate form of NEPA compliance for this regulatory action.

Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. This interim rule is temporary, is limited to the closure of the Truman house, does not affect any other area of the park, and does not involve items or interests of federally recognized Indian tribes.

In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

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

The following persons participated in the writing of this regulation: Larry Villalva, Superintendent, Harry S Truman National Historic Site, Carol Dage, Curator, Harry S Truman National Historic Site, James Loach, Associate Regional Director, Midwest Regional Office, Omaha, Nebraska; and Philip A. Selleck, Chief, Regulations and Special Park Uses, Washington, DC.

The summer flounder, scup, and black sea bass fisheries are managed cooperatively by the Atlantic States Marine Fisheries Commission (Commission) and the Mid-Atlantic Fishery Management Council (Council), in consultation with the New England and South Atlantic Fishery Management Councils. The FMP and its implementing regulations, which are found at 50 CFR part 648, subparts A (general provisions), G (summer flounder), H (scup), and I (black sea bass), describe the process for specifying annual recreational management measures that apply in the Exclusive Economic Zone (EEZ). The state from North Carolina to Maine manage these fisheries within 3 nautical miles of their coasts, under the Commission's plan for summer flounder, scup, and black sea bass. The Federal regulations govern fishing activity in the EEZ, as well as vessels possessing a Federal fisheries permit, regardless of where they fish.

The 2010 coastwide recreational harvest limits, after deduction of research set-aside (RSA), are 8,586,440 lb (3,896 mt) for summer flounder; 3,011,074 lb (1,366 mt) for scup; and 1,830,390 lb (830 mt) for black sea bass. The final 2010 quota specifications, inclusive of the recreational harvest limits, were previously implemented by NMFS effective January 1, 2010 (74 FR 67978; December 22, 2009), for summer flounder and scup, and effective February 2, 2010, for black sea bass (75 FR 6586).

The proposed rule to implement annual Federal recreational measures for the 2010 summer flounder, scup, and black sea bass fisheries was published on April 27, 2010 (75 FR 22087), along with proposed management measures (minimum fish sizes, possession limits, and fishing seasons) intended to keep annual recreational landings from exceeding the specified harvest limits.

Additional discussion on the development of the recreational management measures appeared in the preamble of the proposed rule and is not repeated here. All minimum fish sizes discussed below are total length measurements of the fish, i.e., the straight-line distance from the tip of the snout to the end of the tail while the fish is lying on its side. For black sea bass, total length measurement does not include the caudal fin tendril. All possession limits discussed below are per person.

The Commission notified the NMFS Northeast Regional Administrator by letter dated April 6, 2010, that the 2010 summer flounder recreational fishery management programs (i.e., minimum fish size, possession limit, and fishing seasons) implemented by the states from Massachusetts to North Carolina have been reviewed by the Commission's Technical Committee and approved by the Commission's Summer Flounder Management Board (SF Board). The correspondence indicates that the Commission-approved management programs are projected to restrict 2010 recreational summer flounder coastwide landings consistent with the state-specific requirements established by the Technical Committee and SF Board through the Commission process.

Based on the recommendation of the Commission, the NMFS Northeast Regional Administrator finds that the recreational summer flounder fishing measures proposed to be implemented by the individual states for 2010 are the conservation equivalent of the season, minimum size, and possession limit prescribed in §§ 648.102, 648.103, and 648.105(a), respectively. According to § 648.107(a)(1), vessels subject to the recreational fishing measures of this part and landing summer flounder in a state with an approved conservation equivalency program shall not be subject to Federal measures, and shall instead be subject to the recreational fishing measures implemented by the state in which they land. Section 648.107(a) has been amended to recognize state-implemented measures as conservation equivalent of the coastwide recreational management measures for 2010. For clarity, the 2010 summer flounder management measures adopted by the individual states vary according to the state of landing, as specified in the following table:

This rule implements the measures contained in the April 27, 2010, proposed rule: A 10.5-in (26.67-cm) minimum fish size, a 10-fish per person possession limit, and an open season of June 6 through September 26.

The scup fishery in state waters will be managed under a regional conservation equivalency system developed by the Commission over the last 8 years. Because the Federal FMP does not contain provisions for conservation equivalency, and states may adopt their own unique measures, the Federal and state recreational scup management measures will differ for 2010. In accordance with § 648.4(b)(1)(i), when Federal, state, and local requirements differ, federally permitted scup vessels are required to adhere to the most restrictive requirement regardless of where the vessel fishes.

This rule implements the black sea bass measures adopted by the Commission for 2010: A 12.5-in (31.75-cm) minimum fish size, a 25-fish per person possession limit and fishing seasons from May 22-October 11 and November 1-December 31.

NMFS had proposed in the April 27, 2010 (75 FR 22087), rule to implement the Council-preferred measures (12.5-in (31.75-cm) minimum fish size, 25-fish possession limit, and fishing seasons of May 22-August 8 and September 4-October 4) for the 2010 black sea bass recreational fishery. NMFS anticipated additional data that might permit liberalization of the 2010 measures would become available in the interim between publication of the proposed and final rules. These data, from the Marine Recreational Fisheries Statistics Survey (MRFSS), became available in late April.

The final MRFSS data indicated that 2009 landings of black sea bass were 2.31 million lb (1,048 mt). Prior to the release of these data, black sea bass landing estimates were used for the months of September and October 2009. At the time of the proposed rule, the best available information, which included estimates for September and October, indicated that 2009 recreational black sea bass landings were approximately 3.31 million lb (1,501 mt). The Council's originally preferred measures contained in the proposed rule would have reduced 2010 landings by 44 percent from 2009 levels, consistent with the assumption that 2009 landings were 3.31 million lb (1,501 mt). However, given the final 2009 landings data, a 21-percent reduction in 2010 landings from 2009 levels is necessary.

Many had expressed concern during the management measures development process that actual landings from the 2-month time period in 2009 would be significantly different from any generated estimates, owing in part to the 108-day closure of the black sea bass recreational fishery in the Federal waters of the EEZ that was implemented by NMFS effective October 5, 2009 (74 FR 51092). Because of the timing for Council and Commission meetings and the proposed rule 30 day comment period, NMFS provided a contextual framework for the likelihood that additional data would be available for analysis and solicited specific comments on alternative management measures in the proposed rule (75 FR 22087; April 27, 2010).

The Commission had an opportunity to analyze the final 2009 MRIP landings data prior to its May 2010 meeting. During this meeting, the Commission adopted the measures now implemented through this final rule. These measures are projected to reduce landings by 26 percent from 2009 levels. The Commission adopted measures that were slightly more precautionary (i.e., greater than a 21-percent reduction in 2010 landings from 2009 levels) to allow for a reasonable conservation buffer to account for management uncertainty in the harvest estimates and the effectiveness of the regulations. The Council, as well as members of the public and recreational fishing advocacy groups, provided written comment fully supporting implementation of the less restrictive management measures adopted by the Commission. NMFS finds the measures make use of the best available information in as timely a fashion as the development, review, and implementation process will permit. In addition, NMFS finds that the measures implemented in this final rule provide some buffer to offset management-related uncertainty and mitigate foregone recreational opportunity, thereby reducing adverse socio-economic impacts. Thus, NMFS is implementing these measures for the 2010 fishing season, even though they were not contained in the proposed rule.

Eight comment letters were received regarding the proposed recreational management measures. The Commission's Black Sea Bass Management Board provided the revised 2010 black sea bass measures adopted for state waters as comments on the proposed rule and recommended similar measures be adopted for Federal waters. Five comment letters, including one from the Council, spoke in support of the Commission's revised 2010 black sea bass measures and urged NMFS to adopt similar measures for Federal waters. For clarity, NMFS is implementing, through this rule, the identical black sea bass measures adopted by the Commission and with the full support of the Council for the 2010 black sea bass recreational fishery in Federal waters.

One recreational fishery advocacy group wrote in favor of the summer flounder conservation equivalency system being implemented through this rule.

Comments that require responses are addressed below. Similar comments were consolidated for NMFS's responses:

Comment 1 : One commenter asked why commercial summer flounder fishermen can keep fish smaller than most recreational minimum fish sizes implemented by states through conservation equivalency. This commenter stated that most large summer flounder are female and the utilization of high recreational minimum fish sizes will catch a disproportionately high number of female fish and could negatively impact stock rebuilding efforts.

Response : The issue of different minimum fish sizes between commercial and recreational fisheries is often raised. Minimum fish sizes for both sectors are implemented by NMFS based on recommendations received from the Council. In regards to summer flounder, the minimum commercial fish size has been set at 14 in (35.56 cm) since the late 1990s. The minimum commercial size was established following mesh size selectivity studies conducted for implementation of the original Summer Flounder FMP. These mesh studies considered the capabilities of certain mesh sizes to not encounter fish of certain sizes.

The Council has recommended the 14-in (35.56-cm) minimum commercial summer flounder size to address National Standard 9 of the Magnuson-Stevens Act. National Standard 9 requires that conservation and management measures shall, to the extent practicable, minimize bycatch and, when bycatch cannot be avoided, minimize the mortality of such bycatch. Commercial fishing conducted with bottom tending mobile gear, such as trawl nets, is less discriminating than recreational hook-and-line fishing gear. Thus, commercial fishing operations tend to capture a wider size range and higher numbers of summer flounder than do recreational fishermen. The 14-in (35.56-cm) size strikes a balance between converting potential discards to landings and ensuring summer flounder have an opportunity to spawn before becoming legal minimum commercial size. The current mesh size required for most summer flounder trawl gear is 5.5 in (13.97 cm) and is engineered to catch fish 14 in (35.56 cm) and larger.

Recreational minimum fish size has been used as a tool to constrain landings in the recreational fishery. Recreationally captured summer flounder have a lower associated mortality than do those captured by bottom-tending mobile commercial gear such as trawl nets and scallop dredges. Eighty percent of commercially discarded summer flounder are assumed to be dead or will die after release. By contrast, the most recent assessment for summer flounder used recent research information that indicated the mortality rate for recreationally caught and released summer flounder was 10 percent.

The concept that recreational fisheries target larger, typically female fish has been discussed and examined in recent stock assessments. Additional research on stock sex ratios, natural and fishing mortality by sex and size, and potentially different growth and maturity rates by sex needs further examination for definitive conclusions on potential impacts of the management strategy that has been employed; however, current stock projections indicate that the summer flounder stock will be rebuilt prior to the January 1, 2013, rebuilding deadline.

Comment 2 : One comment suggested that summer flounder management measures should be two fish in the 14 to18-in (35.56 to 45.72-cm) size range and four fish over 18 in (45.72 cm).

Response : The Council-conducted analysis for the 2010 summer flounder recreational management measure coastwide alternatives indicated a 19-in (48.26-cm) minimum fish size, 2-fish possession limit, and coastwide season from May 1 to September 30 was predicted to constrain 2010 landings to the 8.85-million-lb (3,896-mt) recreational harvest limit. The commenter's recommended management measures are substantially more liberal than this, the most liberal coastwide measures analyzed and considered by the Council. Thus, the commenter's suggested measures would likely result in landings well above the recreational harvest limit. Because such measures would not adequately constrain the 2010 recreational summer flounder fishery and would likely exceed the established recreational harvest limit, NMFS finds that such measures would be inconsistent with the goals and objectives of the FMP and the Magnuson-Stevens Act.

NMFS is implementing, through this final rule, conservation equivalency wherein individual state measures approved through the Commission process are found to be equivalent to the coastwide measures. In the conservation equivalency process, individual states have the ability to modify the minimum fish size, possession limits, and fishing season consistent with Commission-imposed requirements before NMFS ultimately elects to implement conservation equivalency or coastwide measures for the fishery. States have some ability to adjust management measures in a manner that best suits the needs of the anglers and fisheries prosecuted in the waters adjacent to their respective state. Some states have developed and implemented, through the Commission process, minimum fish sizes similar to those suggested by the commenter. NMFS has, in turn, adopted through this rule, conservation equivalency for Federal waters.

Comment 3 : One recreational fishery angling group opposed the proposed scup recreational management measures stating that (1) the scup stock is rebuilt, (2) annual catch limits (ACLs) and accountability measures (AMs) are not yet a statutory requirement for the scup fishery, (3) that the 10-fish per person possession limit will dissuade potential party/charter anglers from booking trips, and (4) that there is no conservation or legal requirement to reduce recreational scup landings for 2010. The commenter did not suggest any alternative measures and did acknowledge that a very small percentage of annual recreational scup landings occur in Federally-managed waters under the jurisdiction of NMFS.

Response : In response, NMFS agrees that the best available scientific information does indicate that the scup stock has been rebuilt, thereby satisfying the rebuilding requirements for the previously overfished stock.

NMFS notified the Council on April 22, 2009, that the results of a 2008 externally peer reviewed Data Poor Stocks Working Group (DPSWG) assessment of scup had found that the stock had achieved and exceeded the required rebuilding biomass target. In that same correspondence, NMFS further relayed that the peer-review panel from the DPSWG indicated that the assessment contained a high degree of uncertainty. In its final report, the peer review panel recommended:

The Council's SSC has adhered to the peer review panel's recommendation in setting scup catch levels. For 2010, the SSC recommended a 10-percent increase in Total Allowable Catch (TAC) as the ABC level from the 2009 levels. The recreational harvest limit is a derivative of the overall TAC.

While the perception of the scup stock has changed and is more favorable than recent years and the statutory requirements for stock rebuilding have been satisfied, the catch recommendations from the Council's scientific advisory body, the SSC, has remained precautionary in light of uncertainty associated with the revised stock assessment. NMFS, in turn, has implemented the Council's recommendation for catch levels as guided by the SSC's ABC recommendation. The SSC and Council's Scup Monitoring Committee will review updated stock assessment information in June 2010 before making catch level recommendation for the 2011 fishing year.

While the requirement for stocks not subject to overfishing to have in place ACLs and AMs, as required by the Magnuson-Stevens Act, does not take effect until 2011, the Council has put into practice the utilization of its SSC for catch level advice. Utilization of the SSC in catch level recommendations did not result in a delayed implementation phase-in period when the Magnuson-Stevens Act was reauthorized in 2006. The SSC has been involved in making ABC recommendations since 2008 for the 2009 fishing year.

The SSC brings to bear considerable scientific expertise in making catch level recommendations. As such, the ABC recommended by the SSC sets the standard for scientifically justifiable catch levels. For the Council or NMFS to deviate from the SSC-recommended ABC would require sufficient justification to explain why an alternate catch level was the more appropriate and a better use of the best available scientific information. In the case of scup, the SSC expressed reservations about the information provided by the most recent stock assessment and recommended an ABC that, relative to the estimated total biomass of scup, is risk averse.

The Council may further reduce the ABC recommended by the SSC for additional considerations, consistent with the requirements of National Standard 1 of the Magnuson-Stevens Act to achieve Optimal Yield (OY) on a continuing basis. NMFS provided a detailed response to similar comments that ACLs and AMs are not yet requirements and that the 2010 scup catch level had been set too low to achieve OY on a continuing basis in the 2010 specifications final rule (74 FR 67978, December 22, 2009). Those responses are not repeated here, but are instead incorporated by reference. NMFS acknowledges the commenter's concern that the scup stock status and catch level recommendations appear to be at odds with one another; however, as explained, the SSC and Council have taken a precautionary approach in managing the scup stock, consistent with assessment-related advice to do so. This approach continues to be supported by NMFS.

As part of the regulatory impact review and general economic impact analyses performed for the 2010 recreational management measures, the Council provided an analysis of the potential impacts of a 10-fish per person possession limit for scup. The analysis concluded that up to 2.24 percent of party/charter vessels could be impacted by the 10-fish possession limit. While this would suggest that the impact is low, the analysis indicated that predicting year-to-year angler behavior in response to numerous influential factors, including regulatory changes, is difficult. The Council performed an analysis of all potential combination of summer flounder, scup, and black sea bass alternatives with a hypothetical 25- and 50-percent reduction in fishing trips. The range of impacts varies considerably from a low of $399 per vessel in Delaware to up to $44,000 per vessel in North Carolina. These are total impacts, inclusive of all potential changes for summer flounder, scup, and black sea bass management measures and up to a 50-percent reduction in angler trips.

Furthermore, the majority of scup party/charter landings occur in state waters and may occur on vessels without Federal permits. In such situations, the data necessary to quantify potential impacts are unavailable as permit data are utilized as the basis for impact assessment. See the Council's EA/RIR/IRFA document for additional detail; information on obtaining a copy of the document is provided under the ADDRESSES section of the preamble.

Given the minor magnitude of recreational scup fishing in Federal waters, the economic impacts associated with the implemented measures are expected to be equally minor relative to the entire scup recreational fishery.

Under the recreational fishery management methods utilized by the Council's Scup Monitoring Committee to develop measures designed to constrain recreational landings to the recreational harvest limit, the level of landings in the preceding year are used as a basis for calculating the effectiveness of measures for the upcoming fishing year relative to the catch level. More simply stated, when landings in the previous year exceed the recreational harvest limit for the current year, measures are adjusted. The amount of adjustment necessary is dependent on the level of recreational landings that are allowed under the recreational harvest limit. In years where the recreational harvest limit increases from the previous year, it may not be necessary to adjust measures even if the previous year recreational harvest limit had been exceeded if the amount of the overage is less than the increase in the limit. This process occurs regardless of stock status or other imposed statutory requirements. The underlying reason for such adjustments is to constrain the recreational sector landings within the recreational harvest limit which, in turn, is part of the total fishing mortality permitted for the stock in any given year. As previously discussed, the annual level of fishing mortality established for the stock is established through a Council process that includes a scientifically-based recommendation for ABC from the SSC. The entirety of the catch level process considers both scientific and management uncertainty and other potential issues and is designed to ensure that the stock is not overfished. For scup, while the stock status would suggest that overfishing is unlikely, the DPSWG peer review panel and SSC have indicated that sufficient uncertainty exists within the new assessment and catch levels should proceed cautiously rather than be increased rapidly.

Comment 4 : A recreational fishing advocacy group wrote in support of extending the black sea bass fishing season but objected to the Commission's approach of providing additional buffering to account for management uncertainty. The commenters state that such buffering is arbitrary and inconsistent with science-based management. Furthermore, the commenter states that there is insufficient technical information in the Commission's decision to explain the additional buffer.

Response : The additional buffer the comment refers to is the percent reduction in 2010 black sea bass landings from 2009 levels required to constrain recreational harvest below the established RHL. Based on the 2009 landings data and the 2010 black sea bass recreational harvest limit, a minimum of a 21.4-percent reduction in landings is required to ensure that landings do not exceed the established limit. However, in selecting measures for 2010, the Commission elected to adopt measures (i.e., minimum fish size, possession limit, and fishing season) that provide an estimated 26-percent reduction in landings. In their letter to NMFS recommending adoption of identical measures for Federal waters, the Commission's Black Sea Bass Management Board indicated that the additional 4.6-percent reduction in landings was

NMFS has determined that this in an appropriate application of management uncertainty, consistent with the revised National Standard 1 Guidance (NS 1 Guidance (74 FR 3178; January 16, 2009)). NMFS is implementing, through this rule, measures identical to the Commission-adopted black sea bass recreational management measures because the additional offset in landings provides a greater likelihood of constraining landings below the established 2010 recreational harvest limit. These measures were fully supported and also recommended by the Council, which also agreed that some buffering was advisable given the uncertainty of harvest estimates and unknown effectiveness of the regulations being implemented. NMFS does not find the application of an additional 4.6-percent calculated reduction in landings as arbitrary; rather, it represents a substantive attempt by the Commission and Council to quantify and buffer against issues that led the 2009 black sea bass fishery to exceed the established recreational harvest limit for that year. In the NS 1 Guidance, NMFS recommends that in situations where both scientific and management-related uncertainty exist for a particular fishery, both should be addressed. While these requirements are not yet effective for the FMP, the action taken by the Commission, supported by the Council, and implemented by NMFS is consistent with the tenants of the NS 1 Guidance. The additional offset is not, as the commenter suggests, an offset for scientific uncertainty. Rather, it is as previously indicated a buffer to account for management uncertainty designed to help ensure that 2010 recreational black sea bass landings do not exceed the established recreational harvest limit.

Comment 5 : A recreational fishing advocacy group supported including January and February in the black sea bass fishing season in addition to the May 22-October 11 and November 1-December 31 season implemented by this rule. The comment states that Fishing Vessel Trip Reports (VTRs) provided by charter/party vessels would indicate that black sea bass landings during these months are minimal and that closing the season in January and February provides no contribution to the calculated reduction in landings.

Response : NMFS disagrees with the comment that January and February should be open for the 2010 fishing season. What is at issue is actually the 2011 fishing year. January and February 2010 have already passed; however, the rulemaking for 2011 black sea bass management measures begins with a Council meeting in December 2010. The 2010 black sea bass management measures remain effective until superseded by revised measures. If the Council were to recommend a 2011 black sea bass fishing season that included January and February, there would be insufficient time to implement such a season through the rulemaking process.

There is a substantial issue that if NMFS opened Federal waters in January and February, effectively opening those months retroactively for 2010 and for 2011 for the reasons previously explained, state waters would not be open unless the Commission implemented comparable measures. In a situation such as this wherein Federal waters are open but state waters are closed, Federally permitted vessels are required to adhere to the more restrictive set of measures. The net effect of different fishing seasons in this instance, barring comparable Commission action, would prohibit Federally permitted vessels from fishing in either state or Federal waters.

NMFS has analyzed party/charter VTR data from 2000-2009. These data indicate that 58 unique vessels reported landing or discarding recreationally captured black sea bass within those years. Reported landings totaled 260,442 lb (118 mt) and reported discards totaled 26,073 lb (12 mt) for the time period, averaging 26,044 landed lb per year (12 mt). The average annual landings are less than 1.5 percent of the 2010 black sea bass recreational harvest limit. The commenters suggest that landings of this magnitude be considered de minimis and the fishery opened. No de minimis provision is included in the FMP and all mortality on the stock must be considered when establishing recreational management measures. In addition, no recommendation to open January and February was forwarded by either the Council or Commission.

VTRs are wholly self-reported by party and charter vessel operators and, unlike commercial fisheries which have vessel-by-vessel landing data to validate the self-reported information, recreational party/charter vessels have no independent data validation mechanism. The For-Hire Survey (FHS) component of MRFSS does not yield a vessel-by-vessel independent assessment that is analogous to commercial landing weighouts. As a result, party/charter VTRs are not utilized in stock assessments or as a data source for management decisionmaking. They are informative to verify that there is indeed a January and February black sea bass fishery by Federally permitted vessels and the magnitude of the fishery would appear to be small. However, without a means to independently verify the information contained in the VTRs, there is no way to know how representative or accurate the reported data might be.

The reference to “no effective reduction” made by the commenter addresses a sampling deficiency in the current MRFSS design. Landings in MRFSS Wave 1 (January-February) are not monitored on a coastwide basis. However, pilot projects are underway to address this deficiency by sampling within Wave 1 as well as pilot studies to examine the efficacy of estimation procedures for when only small sample sizes can be obtained by the MRFSS survey. Both of these pilot projects may lead to additional fishery-independent information regarding Northeast Region recreational fishing in January and February. Because no sampling currently occurs, when calculating reduction or liberalization of landings for an upcoming fishing year is performed, the disposition of fishing in January and February contribute no net effect regardless of if the fishery is open or closed because of the lack of estimates for that time period.

Because the FMP does not provide for a de minimis season and there are clearly some magnitude of landings that occur in January and February, NMFS is disinclined to include those months in the 2010 black sea bass fishing season. The result of so doing would effectively ensure that those months would be open in 2011. No such recommendation was forwarded by either the Commission or Council. There is also the previously mentioned issue about creating a different set of measures for state and Federal waters.

Comment 6 : One comment stated that NMFS uses MRFSS data inconsistently: Using the data to indicate overages and impose more restrictive measures, but dismissing the data when liberalization of measures can be implemented.

Response : NMFS has taken a consistent approach to utilization of MRFSS data as the best available information on recreational landings and effort. Through this rule, NMFS is implementing liberalized measures for black sea bass, consistent with the updated MRFSS data that indicate a lower percent reduction in 2010 landings are needed relative to 2009.

The Administrator, Northeast Region, NMFS, determined that this final rule implementing the 2010 summer flounder, scup, and black sea bass recreational management measures is necessary for the conservation and management of the summer flounder, scup, and black sea bass fisheries, and that it 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.

Included in this final rule is the FRFA prepared pursuant to 5 U.S.C. 604(a). The FRFA incorporates the economic impacts described in the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS's responses to those comments, and a summary of the analyses completed to support the action. Copies of the EA/RIR/IRFA and supplement are available from the Council and NMFS (see ADDRESSES ).

A description of the reasons why this action is being taken, and the objectives of and legal basis for this final rule are explained in the preambles to the proposed rule and this final rule, and are not repeated here.

A summary of the comments received and NMFS's responses thereto is contained in the preamble of this rule. None of those comments addressed specific information contained in the IRFA economic analysis or the economic impacts of the rule more generally. As outlined in the preamble, the black sea bass measures implemented by this rule were changed from those previously proposed. The change in measures was a direct result of comments received from the Commission, Council, and interested public.

The Council estimated that the management measures could affect any of the 948 vessels possessing a Federal charter/party permit for summer flounder, scup, and/or black sea bass in 2009, the most recent year for which complete permit data are available. However, only 328 vessels reported active participation in the recreational summer flounder, scup, and/or black sea bass fisheries in 2008, the most recent year for which complete fishing vessel trip reports (i.e., logbooks) are available.

No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.

No-action alternatives . The economic analysis conducted in support of this action assessed the impacts of the various management alternatives. In the EA, the no action alternative for each species is defined as the continuation of the management measures as codified for the 2009 fishing season. The no-action measures were analyzed in Alternative 2 for each species in the Council's EA/RIR/IRFA.

For summer flounder, the no-action (coastwide) alternative of a 19.5-inch (49.53-cm) minimum fish size, a two-fish possession limit, and a May 1-September 30 fishing season would achieve the mortality objectives required but would be more restrictive than necessary for most states.

The no-action alternative for scup, a 10.5-inch (26.67-cm) minimum fish size, a 15-fish possession limit, and open seasons of January 1 through February 28 and October 1 through October 31, is not expected to reduce landings from 2009 levels. If scup Alternative 2 were adopted for 2010, landings would be expected to be in the 4.0-million-lb (1,814-mt) range, thereby exceeding the 3.01-million-lb (1,366-mt) recreational harvest limit. This is inconsistent with the objectives of the FMP.

The no-action alternative for black sea bass (a 12.5-in (31.75-cm) minimum fish size, a 25-fish possession limit, and no closed fishing season) would result landings that exceed the 1.83-million lb (830-mt) recreational harvest limit for 2010 and, therefore, cannot be continued for the 2010 fishing season.

Summer flounder alternatives . In seeking to minimize the impact of recreational management measures (minimum fish size, possession limit, and fishing season) on small entities (i.e., Federal party/charter permit holders), NMFS is constrained to implementing measures that meet the conservation objectives of the FMP and Magnuson-Stevens Act.

The alternatives examined by the Council and forwarded for consideration by NMFS consisted of the preferred alternative of state-by-state conservation equivalency with a precautionary default backstop, and the non-preferred alternative of coastwide measures. These were alternatives 1 and 2, respectively, in the Council's EA/RIR/IRFA. These two alternatives were determined by the Council analyses to satisfy the 2010 conservation objectives for the recreational fishery, i.e., analysis indicated that implementation of either would constrain recreational landings within the 2010 recreational harvest limit. Therefore, either alternative recreational management system could be considered for implementation by NMFS, as the critical metric of satisfying the regulatory and statutory requirements would be met by either.

Next, NMFS considered the recommendation of both the Council and Commission. Both groups recommended implementation of state-by-state conservation equivalency, with a precautionary default backstop. The recommendations of both groups were not unanimous: Some Council and Commission members objected to the use of conservation equivalency. In fact, the State of New York filed litigation seeking relief from conservation equivalency implemented for both the 2008 and 2009 recreational summer flounder fisheries. The litigation for those cases, State of New York et al. v. Locke et al. Civil Action Nos. 08-cv-2503 and 09-cv-3196 , remain unresolved by the U.S. District Court Eastern District of New York.

For NMFS to disapprove the Council's recommendation for conservation equivalency and substitute coastwide management measures, NMFS must reasonably demonstrate that the recommended measures are either inconsistent with applicable law or demonstrate that the conservation objectives of the FMP will not be achieved by implementing conservation equivalency. NMFS does not find the Council and Commission's recommendation to be inconsistent with the implementing regulations of the FMP found at § 648.100 or the Magnuson-Stevens Act.

The additional metric for consideration applicable to the FRFA is examination of the economic impacts of the alternatives on small entities consistent with the stated objectives of applicable statutes. As previously stated, both conservation equivalency (alternative 1) and coastwide measures (alternative 2) are projected to achieve the conservation objectives in place for the 2010 summer flounder recreational fishery. However, the economic impacts of the two alternatives are not equal: The economic impacts on small entities under the coastwide measures management system would vary in comparison to the conservation equivalency system dependent on the specific state wherein the small entities operate.

Quantitative analysis of the economic impacts associated with conservation equivalency measures are not available. Because the development of the individual state measures occurs concurrent to the NMFS rulemaking process to ensure timely implementation of final measures for the 2010 recreational fishery, the specific measures implemented by states are not available for economic impact analyses. Instead, qualitative methods are utilized. The Council analysis concluded, and NMFS agrees, that conservation equivalency is expected to minimize impacts on small entities because individual states can develop specific summer flounder management measures that allow the fishery to operate during each state's critical fishing periods while still achieving conservation goals. To be clear, there are individual states whose conservation equivalency measures may have a more adverse impact to some small entities, dependent on the restrictions imposed by the Commission, than would coastwide measures. New York stands out as such a state. However, the one-size-fits-all approach of coastwide measures would impact a broader distribution of states and small entities.

NMFS is implementing the Council and Commission's recommended state-by-state conservation equivalency measures because: (1) NMFS finds no compelling reason to disapprove the Council and Commission's recommended 2010 management system, as the management measures contained in conservation equivalency are projected to provide the necessary restriction on recreational landings to prevent the recreational harvest limit from being exceeded; and (2) the net economic impact to small entities on a coastwide basis are expected to be mitigated, to the extent practicable, for a much larger percentage of small entities. Data provided by the Council indicates that 328 federally permitted party/charter vessels landed some combination of summer flounder, scup, and black sea bass in 2008, the most recent year of available data. Within this total, 49 vessels, or 15 percent, were from New York. By inference, 85 percent of the small entities engaged in recreational fishing would be impacted less by the implementation of conservation equivalency, assuming that the impacts to New York small entities are indeed greater under conservation equivalency.

Scup alternatives . The options available for scup recreational fisheries management are constrained to a suite of minimum fish size, possession limit, and fishing season that achieves the annual conservation objective expressed through a recreational harvest limit on landings. As outlined in the preamble, the individual states have elected to implement a state-waters conservation equivalency system for the 2010 scup recreational fishery that has no comparable regulations for use in Federal waters. The Commission-adopted measures are not expected to constrain landings to the 2010 scup recreational harvest limit. Thus, the conservation objectives and the recreational harvest limit are likely to be compromised regardless of action taken for Federal waters. Very little of the scup recreational fishery occurs in Federal waters. Rather than close Federal waters to scup recreational fishing, NMFS is implementing the following measures: A 10.5-inch (26.67-cm) minimum fish size; a 10-fish per person possession limit; and an open season of June 6-September 26. These measures were not the most conservative proposed by the Council as they are projected to reduce 2010 landings by 29 percent from 2009 levels if comparable measures had been implemented in state waters.

Implementation of these measures offers an alternative to outright closure of Federal waters wherein all scup encountered would be required to be discarded. Instead, the limited amount of scup recreational fishing that occurs in Federal waters will have some overlap with the measures implemented for state waters by the Commission and fish that would have been discarded may be landed in limited numbers. These minor landings are not expected to add a substantial amount of recreational fishing mortality to the stock in 2010, nor is overfishing expected to occur as a result of either the Federal or state measures implemented for 2010. Estimates from MRFSS indicate that the amount of scup recreationally harvested in Federal waters is typically 5 percent or less of the total annual take.

The measures of alternative 1 were also considered by NMFS. This would have resulted in an 11-inch (27.94-cm) minimum fish size, a longer season, and identical possession limit when compared to alternative 3. These measures did not synchronize well with the Commission measures and, while more conservative--achieving a projected 35 percent reduction in landings from 2009 levels if similar measures had been enacted in state waters--NMFS found that the minimal conservation benefit was outweighed by the lack of consistency with measures adopted for state waters. The impacts to charter and party vessels were similar between alternative 1 and 3 in the Council's analysis. Alternative 2 was not considered for implementation as it was not expected to effect any reduction in 2010 scup landing levels.

Black sea bass alternatives . Similar to both summer flounder and scup, the options available for black sea bass recreational management measures are constrained to selecting a suite of minimum fish size, possession limit, and fishing season measures that achieve the annual conservation objectives. In this case, this final rule is implementing measures that differ from those originally proposed. This rule implements the measures of alternative 4 (modified) contained in the EA/RIR/IRFA addendum: A 12.5-inch (31.75-cm) minimum fish size; a 25-fish possession limit; and May 22-October 11 and November 1-December 31 fishing seasons. This alternative provides the lowest associated economic impacts to small entities. Alternatives 1, 3, and 4 (unmodified) were projected to achieve the conservation objectives for the 2010 black sea bass fishery; however, given the evolution of increasingly improved data available during the recreational management measures development, these alternatives are now more conservative than necessary relative to the conservation objectives and have higher associated economic impacts than the measure being implemented through this rule.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as the small entity compliance guide was prepared and will be sent to all holders of Federal party/charter permits issued for the summer flounder, scup, and black sea bass fisheries. In addition, copies of this final rule and the small entity compliance guide are available from NMFS (see ADDRESSES ) and at the following website: http://www.nero.noaa.gov .

Fisheries, Fishing, Reporting and recordkeeping requirements.

This final rule is accessible via the Internet at the Office of the Federal Register 's Web site at http://www.gpoaccess.gov/fr/index.html. Background information and documents are available at the Pacific Fishery Management Council's website at http://www.pcouncil.org/. Background information and documents are also available at the NMFS Northwest Region Web site at http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/index.cfm.

Copies of the final environmental impact statement (FEIS) for the 2009-2010 Groundfish Specifications and Management Measures are available from Donald McIsaac, Executive Director, Pacific Fishery Management Council (Council), 7700 NE. Ambassador Place, Portland, OR 97220, phone: 503-820-2280.

Copies of additional reports referred to in this document may also be obtained from the Council. Copies of the Record of Decision (ROD), final regulatory flexibility analysis (FRFA), and the Small Entity Compliance Guide are available from William W. Stelle, Jr., Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way, NE., Seattle, WA 98115-0070.

On December 31, 2008, NMFS published a proposed rule to implement the 2009-2010 specifications and management measures for the Pacific Coast groundfish fishery (73 FR 80516), including, among other species, darkblotched rockfish, cowcod, and yelloweye rockfish. A final rule was published on March 6, 2009 (74 FR 9874), which codified the specifications and management measures in the CFR (50 CFR part 660, subpart G). That action set the 2009-2010 harvest specifications and management measures for groundfish taken in the U.S. Exclusive Economic Zone (EEZ) off the coasts of Washington, Oregon, and California, and revised rebuilding plans for four of seven overfished species, consistent with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the Pacific Coast Groundfish Fishery Management Plan (FMP). The existing and revised rebuilding plans were consistent with Amendment 16-4 to the FMP, and were designed to comply with the rebuilding requirements of the MSA.

In response to the latest in a series of complaints filed in Natural Resources Defense Council v. Locke, Civil Action No. C 01-0421 JL, challenging the rebuilding provisions in the FMP, the U.S. District Court for the Northern District of California vacated the 2009 and 2010 specifications for darkblotched rockfish, cowcod, and yelloweye rockfish. Order on Remedy, Dkt. No. 342 (April 29, 2010) (Opinion). The Court held that NMFS violated National Standard 2 of the MSA by “failing to use the best scientific information available on the economic status of fishing communities in their 2009-2010 Biennial specifications and Management Measures for the Pacific Coast Groundfish Fishery (2009-2010 Specifications).” Further, the Court held that NMFS established “rebuilding plans for darkblotched rockfish, cowcod, and yelloweye rockfish in the 2009-2010 Specifications that do not rebuild those species in time periods that are `as short as possible' within the meaning of section 304(e)(4)(A)(i)” of the MSA.

The Court remanded the 2009-2010 specifications and ordered the agency “within one year of the date of issuance of the Order on Remedy,” to establish new specifications for the Pacific Coast Groundfish Fishery that “are based on the `best scientific information available' within the meaning of MSA National Standard 2, 16 U.S.C. 1851(a)(2); and establish rebuilding periods for darkblotched rockfish, cowcod, and yelloweye rockfish that are `as short as possible' within the meaning of MSA section 304(e)(4)(A)(i), 16 U.S.C. 1854 (e)(4)(A)(i).”

In response, NMFS is considering the extent to which the current development of the 2011-2012 specifications for all species managed under the FMP must be modified to comply with the Court's Order. The Pacific Fishery Management Council (Council) is near the end of the two-year development of the new specifications and management measures. Under the current schedule, the Council would adopt its preferred alternatives at its June 2010 meeting and submit them to NMFS for consideration and, following additional public comment, possible adoption and implementation by January 1, 2011.

The Court's Order also vacated the 2009-2010 specifications for darkblotched rockfish, cowcod and yelloweye rockfish, stating that “for the remainder of 2010, the most recent annual harvest levels (also known as optimum yields, or `OYs') that NMFS specified for darkblotched rockfish, cowcod, and yelloweye rockfish in its 2007-2008 Biennial Specifications and Managements for the Pacific Coast Groundfish Fishery are in effect. For yelloweye rockfish, the OY in 2010 is 14 metric tons.”

In order to implement the Court's Order, NMFS is taking the following actions with respect to the 2010 groundfish regulations and management. This rule specifies that the 2010 OYs for three species are: darkblotched rockfish, 330 metric tons; cowcod, 4 metric tons; and yelloweye rockfish, 14 metric tons. The agency has requested that the Council, through its inseason management process, review the anticipated catch of these species and recommend to the agency the appropriate management measures, including modifications to set asides or harvest guidelines, to manage the fishery within the OY levels set by the Court, consistent with the following guidance.

These OY amounts are based on a strict reading of the Court's Opinion and the subsequent Order on Remedy, Dkt. No. 342 (April 29, 2010). For darkblotched rockfish, NMFS notes that modifying the current 2010 OY of 291 mt by increasing it to the 2008 OY of 330 mt, as required by the Order, does not appear to be consistent with the Court's underlying reasoning in its Opinion. Thus, although NMFS is modifying the 2010 OY to be consistent with the Court's Order (an OY of 330 mt), NMFS is recommending that the Council's management measures be designed to keep the 2010 fishery within 290 mt, which is equivalent to the 2007 OY level for darkblotched rockfish. The 2010 OY for cowcod remains 4 mt, which is the same OY specified in 2008. The 2010 OY for yelloweye rockfish is reduced from 17 mt to 14 mt.

At its June meeting, the Council recommended the management measures to keep the fishery within the necessary levels published in this rule. These measures were published on July 1, 2010 (75 FR 38030).

This rule also corrects the 2010 OY in Table 2a to 660 Subpart G for canary rockfish. In the final rule for the 2009-2010 groundfish harvest specifications and management measures (74 FR 9874, March 6, 2009), NMFS established a 2010 OY for canary rockfish of 105 mt. In June 2009, after receiving some updated stock assessments, the Council recommended consideration of lowering the OYs for 2010 for both canary rockfish and petrale sole. In response, NMFS issued a proposed rule (74 FR 46714, September 11, 2009) with a proposed canary rockfish OY for 2010 that ranged from 44 mt to 105 mt. After review of the canary rockfish rebuilding analyses at its November 2009 meeting, the Council recommended no change to the existing canary rockfish OY of 105 mt. The preamble of the final rule (74 FR 65480, December 10, 2009), which implemented a change in the petrale sole OY, explained that the 2010 canary rockfish OY was not being changed and remained at 105 mt. The final rule did not change preexisting trip limits for the fishery implementing the 105 mt OY, nor did it change a footnote to the 2010 ABC/OY Table, Table 2a to Part 660, Subpart G-2010, that described the canary rockfish OY as being 105 mt. However, Table 2a still indicated the canary rockfish OY range of 44-105 from the proposed rule. This was a mistake. Therefore, in this action, NMFS is revising the OY table to be consistent with the decision announced in the December 10, 2009, final rule.

The Assistant Administrator for Fisheries, NOAA, has determined that this final rule is consistent with the April 29, 2010, Court Order and the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and other applicable laws.

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

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

The Assistant Administrator for Fisheries, NOAA, finds good cause to waive notice and public procedure on this action because it is unnecessary and contrary to the public interest, as provided by 5 U.S.C. 553(b)(B). This action ensures that regulatory text provides accurate information to the regulated public consistent with a duly issued court order. For darkblotched rockfish, cowcod, and yelloweye rockfish, NMFS does not have discretion to take other action, as there is no alternative to complying with the court order. With regard to canary rockfish, correction of the OY number in the table is a minor, merely technical amendment, thus prior notice and comment is unnecessary. The December 10, 2009, final rule did not change preexisting trip limits implementing the 105 mt OY, and these trip limits are the basis for regulation of the fishery. Clarifying in the table that the canary rockfish OY is 105 mt as opposed to 44-105 mt does not affect regulation of the fishery. Providing for public comment on this action is contrary to the public interest. It would have no effect other than to slow the process of making the affected regulations consistent with the court order. The public would be best served by having accurate information in regulatory text immediately. Furthermore, the Assistant Administrator for Fisheries waives the 30-day delayed effectiveness period, as provided by 5 U.S.C. 553(d)(3), for the reasons stated above. In addition, the impacts of this action (the change in the 2010 OYs for three rockfish species) is already effective based on the court order, and this will bring the codified regulations into compliance with currently effective harvest levels.

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 2010 TAC of Pacific ocean perch in the Western Regulatory Area of the GOA is 2,895 metric tons (mt) as established by the final 2010 and 2011 harvest specifications for groundfish of the GOA (75 FR 11749, March 12, 2010).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2010 TAC of Pacific ocean perch in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,595 mt, and is setting aside the remaining 300 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 ocean perch in the Western 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 ocean perch in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 1, 2010.

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.