We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede airworthiness directive (AD) 2009-07-04, amendment 39-15863 (74 FR 14460, March 31, 2009). That AD applies to the specified products. The NPRM published in the Federal Register on June 28, 2010 (75 FR 36577). That NPRM proposed to continue to require modifying the auxiliary hydraulic power system (including doing all applicable related investigative and corrective actions), using corrected service information.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

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

We estimate that this AD affects 21 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to the specified products. That NPRM was published in the Federal Register on July 7, 2010 (75 FR 38943). That NPRM proposed to require installing a support bracket and coupler on the left and right wing-to-fuselage transition, and metallic overbraid on the left and right leading edge wire assembly.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We estimate that this AD affects 61 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on May 19, 2010 (75 FR 27961). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

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

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 16 products of U.S. registry. We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $4,814 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $82,464, or $5,154 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on July 1, 2010 (75 FR 38058). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

The general inspection includes identifying the type of bolt and nut at each location.

External inspections of the bolt installation include:

• Visually inspecting for proper nut installation, nut seating, and fuel seepage.

• Checking for gaps between the fitting and wing structure.

• Checking the nuts with a suitable torque spanner to the specifications in the torque figures shown in Table 2. of the Accomplishment Instructions of BAE SYSTEMS (OPERATIONS) LIMITED Inspection Service Bulletin ISB.57-033, Revision 9, dated October 10, 2006, if Hi-Loks are installed, and

• Doing either an ultrasonic inspection for damaged bolts or torque check of the tension bolts.

Related investigative actions include:

• Inspecting the condition of the sealant at and around all rear spar root joint attachment bolts.

• Checking the bolt for damage or evidence of the nut being tightened to the end of the thread.

• Examining the wear pattern on the seating surfaces of the bolt and nut to determine if the bolt and nut have been evenly seated on the structure.

• Visually inspecting the bolt hole and surrounding area for damage, and

• Confirming that the hole edge radius on the forward face of the rear spar complies with the specifications in Table 4 of the Accomplishment Instructions of BAE SYSTEMS (OPERATIONS) LIMITED Inspection Service Bulletin ISB.57-033, Revision 9, dated October 10, 2006.

Corrective actions include either replacing the bolt, or repairing the defect in accordance with approved repair data from BAE Systems. You may obtain further information by examining the MCAI in the AD docket.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We have revised the applicability of the existing AD to identify model designations as published in the most recent type certificate data sheet for the affected models.

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

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

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 1 product of U.S. registry. We also estimate that it will take about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $255.

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

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

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

For the reasons discussed above, I certify this AD:

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on August 3, 2010 (75 FR 45558). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

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

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 78 products of U.S. registry. We also estimate that it will take about 18 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $128 per product.

Based on these figures, we estimate the cost of this AD to the U.S. operators to be $129,324 or $1,658 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

Discussion

EASA, which is the Technical Agent for the Member States of the European Community, has issued Emergency AD No. 2007-0139-E, dated May 15, 2007 (corrected May 23, 2007), to correct an unsafe condition for these French-certificated helicopters. The MCAI AD states that the AD is issued following one report of a crack discovered in the area of the center cross-member at station X 2325, at the attachment point of the yaw channel ball-type control sheath stop, of an AS355N helicopter with the collective-to-yaw control coupling. Investigations revealed that the helicopter did not have the structural doublers, which are combined with the collective-to-yaw control coupling installation. Repetitive loads on the non-modified cross-member may cause it to crack. A crack can reduce the yaw control travel.

You may obtain further information by examining the MCAI AD and any related service information in the AD docket.

Eurocopter has issued an Emergency Alert Service Bulletin (EASB), dated April 11, 2007, that contains 3 different numbers (Nos. 53.00.37, 53.00.11, and 53.00.23) for Eurocopter Model 350, 355, 550, and 555 helicopters. EASB No. 53.00.37 relates to 2 Model 350 (350 BB and 350 L1) helicopters that are not type-certificated in the United States. EASB No. 53.00.11 relates to 4 Model 550 and 6 Model 555 military helicopters that are not type-certificated in the United States. The actions described in the MCAI AD are intended to correct the same unsafe condition as that identified in the service information.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design, EASA, their Technical Agent, has notified us of the unsafe condition described in the MCAI AD and service information. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. However, we invite you to send us any written data, views, or arguments concerning this AD. Send your comments to an address listed under the ADDRESSES section of this AD. Include “Docket No. FAA-2010-0969; Directorate Identifier 2009-SW-62-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

This AD differs from the MCAI AD as follows:

• We use the word “inspect” to describe the actions required by an inspector versus the word “check,” which is how we describe the actions allowed by a pilot.

• We refer to the compliance time as “hours time-in-service (TIS)” rather than “flying hours.”

• We do not include the military model helicopters in the applicability.

We estimate that this AD will affect about 725 helicopters of U.S. registry. We also estimate that it will take about 1 work-hour per helicopter to inspect for the presence of the center cross member and doublers under the cabin floor and determine whether there is a crack in the center cross member. The average labor rate is $85 per work-hour. Required parts will cost about $150 per helicopter. Based on these figures, we estimate the cost of the AD on U.S. operators is $189,135, assuming 7 helicopters have cracks and require an additional 8 work-hours of repair labor and $2,000 in repair design and parts.

An unsafe condition exists that requires the immediate adoption of this AD. We find that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of the short compliance time, within 10 hours TIS or 1 month, whichever occurs first, to inspect for the presence of the cross-member at station X 2165 and the doublers at X 2325 and Y 269 and installing them within 55 hours TIS if they are missing. Therefore, we have determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. However, we invite you to send us any written data, views, or arguments concerning this AD. Send your comments to an address listed under the ADDRESSES section of this AD. Include “Docket No. FAA-2010-0969; Directorate Identifier 2009-SW-62-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

Therefore, I certify this AD:

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 and placed it in the AD docket.

We issued a Notice of Proposed Rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to ECF Model AS350B3 and EC130 B4 helicopters on August 3, 2010. That NPRM was published in the Federal Register on August 11, 2010 (75 FR 48615). That NPRM proposed to require inspecting the pilot's and co-pilot's throttle twist for proper operation of the contactors, which provide for changes between the “IDLE” and “FLIGHT” positions of the throttle twist grip control.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No. 2009-0256, dated December 2, 2009, to correct an unsafe condition for the ECF Model AS350B3 and EC130 B4 helicopters. EASA advises that analysis shows a dormant failure of one of the two contactors 53Ka or 53Kb can occur following the modification of the Model AS350B3 by MOD 073254 and modification of the Model EC130 B4 by MOD 073773. Failure of a contactor can prevent switching from “IDLE” mode to “FLIGHT” mode during autorotation training making it impossible to execute a power recovery and compelling the pilot to continue the autorotation to the ground. This condition, if not corrected, can lead to an unintended touchdown to the ground during a practice autorotation at a flight-idle power setting, damage to the helicopter, and injury to the occupants.

ECF has issued Alert Service Bulletin (ASB) No. 05.00.61 for the Model AS350B3 helicopters and ASB No. 05A009 for the EC130 B4 helicopters. Both ASBs are dated November 16, 2009. Both ASBs specify a functional check of the two contactors 53Ka and 53Kb, which are used to switch from “IDLE” to “FLIGHT” mode or vice versa. The ASBs also specify repetitive checking of the contactors for correct opening and closing to detect this dormant failure. ECF states that it will be preparing a modification, which will cancel the ASBs, in the very near future. Once the manufacturer develops corrective terminating actions, we anticipate further rulemaking.

These products have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, their technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of these same type designs.

We refer to flying hours as hours time-in-service (TIS). Also, we refer to maintenance actions as inspections rather than checks.

By publishing the NPRM, we gave the public an opportunity to participate in developing this AD. However, we received no comments on the NPRM or on our determination of the cost to the public. Therefore, based on our review and evaluation of the available data, we have determined that air safety and the public interest require adopting the AD as proposed.

We estimate that this AD will affect about 116 of the Model EC130 B4 helicopters and 231 of the Model AS350B3 helicopters for a total of 347 helicopters of U.S. registry. We also estimate that it will take about 0.5 work-hour per helicopter to inspect and about 0.5 work-hour per helicopter to replace a micro-switch. The average labor rate is $85 per work-hour. Required parts cost about $538 for the T3933-3 microswitch. Based on these figures, we estimate that the cost of this AD on U.S. operators is $21,714, assuming 4 microswitches are replaced on the Model EC130 B4 helicopters and 8 microswitches are replaced on the Model AS350B3 helicopters.

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.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on January 5, 2010 (75 FR 258). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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

Comair, Inc. states that in the NPRM, the Summary, Discussion, and paragraph (e), refer to the airplanes as Model “CL600-2B19” instead of “CL-600-2B19.”

From this comment, we infer that Comair, Inc. requests that we revise the identified sections of the NPRM for model designation consistency. In the Summary, Discussion, and paragraph (e) of this AD, we are quoting from Canadian Airworthiness Directive CF-2009-19, dated April 29, 2009. However, for clarity, we have made the change to “CL[-]600-2B19” in the specified sections of this AD.

Air Wisconsin Airlines states that the Costs of Compliance section of the NPRM indicates only the number of affected airplanes and does not take into consideration that there are two units installed on each airplane, making it a total of 1,304 affected components.

From these statements we infer that Air Wisconsin Airlines is requesting that we revise the Costs of Compliance section of the AD to include the actual number of affected valves. We agree with Air Wisconsin Airlines that the Costs of Compliance needs to be revised to include the cost for both the selector valve of the NLG and the door selector valve. We have revised the cost of parts to $80 to reflect 2 valves per product ($40 per valve). For clarification, the term “affected product” in the Costs of Compliance section of this AD refers to the affected number of airplanes of U.S. registry.

Air Wisconsin Airlines states that the problem of the door selector valves of the NLG having their end caps incorrectly lock-wired and/or incorrectly torqued during assembly first came to its attention through Bombardier Service Bulletin 601R-32-090. Air Wisconsin Airlines states that Bombardier Service Bulletin 601R-32-104, dated March 3, 2009, was issued to supersede Bombardier Service Bulletin 601R-32-090 to expand the effectivity of the campaign. Air Wisconsin Airlines states that the proposed AD should give credit for those valves that have already complied with Bombardier Service Bulletin 601R-32-090.

We agree with Air Wisconsin Airlines request to receive credit for actions completed in accordance with Bombardier Service Bulletin 601R-32-090, Revision B, dated December 12, 2006; and Revision C, dated March 3, 2009. We have added new paragraph (f)(4) accordingly.

Air Wisconsin Airlines requests that we revise the applicability in paragraph (c) of the proposed AD to “NLG and NLG selector valves, P/N 750006000 (601R75146-1) identified in Bombardier S/B 601R-32-104 dated March 3, 2009 when installed on Bombardier * * * Model CL-600-2B19 * * * airplanes * * *” The commenter provides no justification for this requested change.

We disagree with Air Wisconsin Airlines' request to revise the applicability in paragraph (c) of this AD. We have determined that identifying each airplane by serial number and not by the valve serial number is the best way to control the airworthiness of the fleet and to ensure compliance with the AD.

According to general FAA policy, if an unsafe condition results from the installation of a particular component in only one particular make and model of airplane, the AD should apply to the airplane model, not the component. The reason for this is simple: If the AD applies to the airplane model equipped with the item, operators of those airplanes will be notified directly of the unsafe condition and the action required to correct it. While we assume that operators can identify the airplane models they operate, they may not be aware of specific items installed on the airplanes. Therefore, specifying the airplane models in the applicability as the subject of the AD prevents an operator's “unknowing failure to comply” with the AD. We recognize that an unsafe condition may exist in an item that is installed in many different airplanes. In that case, we consider it impractical to issue an AD against each airplane; in fact, many times, the exact models and numbers of airplanes on which the item is installed may be unknown. Therefore, in those situations, the AD would apply to the item and usually indicates that the item is known to be “installed on, but not limited to,” various airplane models. We have not changed the AD in this regard.

Air Wisconsin Airlines requests that we extend the compliance time for the inspection in the NPRM. Air Wisconsin Airlines states that the problem of the door selector valves of the NLG having their end caps incorrectly lock-wired and/or incorrectly torqued during assembly first came to its attention in 2003 through Bombardier Service Bulletin 601R-32-090, which affected 645 units. Air Wisconsin Airlines also states that Bombardier Service Bulletin 601R-32-104, dated March 3, 2009, expanded the effectivity to include 2,126 units. Air Wisconsin Airlines states that it has been working on this issue and it has a substantial number of valves in compliance, but since this issue has been around for almost 7 years without any regulatory influence, the short compliance time of within 1,600 flight hours or 18 months after the effective date of this AD, whichever occurs first, cannot be justified. Air Wisconsin Airlines states that a longer compliance window should be given considering the number of units affected and the insufficient amount of spares available to ensure compliance within the time provided by a directive.

We disagree with Air Wisconsin Airlines' request to extend the compliance time for the inspection. In developing an appropriate compliance time for the inspection, we considered the safety implications, parts availability, and normal maintenance schedules for the timely accomplishment of the modification. We have determined that the compliance time will ensure an acceptable level of safety and allow the modification to be done during scheduled maintenance intervals for most affected operators. In addition, Bombardier, Inc. recommends a compliance time of 1,600 flight hours or 18 months. We have determined that an adequate supply of valves is available in order for operators to accomplish the required actions within the compliance time specified in this AD. However, operators may apply for an alternative method of compliance (AMOC) in accordance with the provisions specified in paragraph (g)(1) of this AD. We have not changed the AD in this regard.

Comair, Inc. and Air Wisconsin Airlines request that a review of airplane maintenance records be acceptable in lieu of an inspection to determine serial number and identification markings of the selector valve. Air Wisconsin Airlines states that a records check is sufficient to locate valves requiring inspection.

We agree with the commenters' request that a review of airplane maintenance records is acceptable for determining the serial number and identification markings of the selector valve. We have changed paragraph (f)(1) of this AD to allow a review of maintenance records in lieu of the inspection required by that paragraph.

Comair, Inc. proposes revised wording for paragraph (f)(2) of the NPRM. The suggested wording clarifies that either the selector valve of the NLG or the door selector valve could have certain serial numbers or identified markings since paragraph (f)(2) identifies both valves.

We agree with Comair, Inc. that the suggested wording is more accurate. We have revised paragraph (f)(2) of this AD as suggested.

Comair, Inc. and Air Wisconsin Airlines request that the compliance time of, “before further flight,” be removed from paragraph (f)(3) of the NPRM.

Air Wisconsin Airlines states that the compliance time of “before further flight” specified in paragraph (f)(3) of the NPRM is not in Canadian Airworthiness Directive CF-2009-19, dated April 29, 2009, or in any of the service information listed in that Canadian AD. Air Wisconsin Airlines also states that there does not appear to be enough time and available spare parts in order to do the inspections, remove all the affected serial numbers which fail the test, and send them to the vendor for repair.

Comair, Inc. states that a compliance time of “before further flight” seems contrary or restrictive when the actions specified in paragraph (f)(1) of the NPRM are done. Comair Inc. states that it has already performed a records review and determined which valves have a serial number range specified in Bombardier Service Bulletin 601R-32-104, dated March 3, 2009, and which valves do not have a suffix “T” or “SB750006000-1” marking, as documented on FAA Form 8130-3. Comair, Inc. also states that a compliance time of “before further flight” would require it to ground its airplanes on the effective date of the final rule because it has already determined which valves require action.

We partially agree with the commenters. We agree that there could be a misunderstanding in reading this AD based on the understanding that paragraph (f)(3) of this AD is a stand-alone paragraph. However, we disagree with Comair Inc.'s statement that the compliance time of “before further flight” would require Comair Inc. to ground its airplanes. The intent of this AD is to permit operators to do the identification check within the specified compliance time of “within 1,600 flight hours or 18 months after the effective date of this AD, whichever occurs first.” We have revised paragraph (f)(3) of this AD for clarity. In addition, operators may apply for an AMOC in accordance with the provisions specified in paragraph (g)(1) of this AD.

Air Wisconsin Airlines states that the requirement in Tactair Service Bulletin SB750006000-1, Revision E, dated July 31, 2008 (which was referred to in Bombardier Service Bulletin 601R-32-104, dated March 3, 2009, as an additional source of guidance), includes an instruction to ink stamp the service bulletin number on the valve. Air Wisconsin states that this action does not provide an added level of safety, and that this would only lead to confusion, and a meaningless issue of non-compliance should the marking ever become eradicated. Air Wisconsin also states that it is unnecessary to mark the valve.

From these statements, we infer that Air Wisconsin Airlines is requesting that we revise the AD to eliminate unnecessary part markings. We disagree. Valves that are not inked-stamped must be inspected to fulfill the requirements of this AD. An ink-stamped valve demonstrates that the valve has been inspected and modified. We have not made changes to this AD in this regard.

We have revised this AD to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.

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

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

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.

Since issuance of the NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.

We estimate that this AD will affect 652 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $80 per product (2 valves per product/$40 per valve). Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $107,580, or $165 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on July 23, 2010 (75 FR 43105). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

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

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 6 products of U.S. registry. We also estimate that it will take about 30 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $100 per product.

Based on these figures, we estimate the cost of this AD to the U.S. operators to be $15,900 or $2,650 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on July 23, 2010 (75 FR 43095). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

If left uncorrected, this situation could lead to in-flight engine failure(s).

This AD requires:

(1) Repetitive visual checks of the engine oil levels to prevent an undetected low level condition;

(2) Repetitive inspections of the oil dipsticks to detect faulty units;

(3) Replacement of faulty oil dipsticks or visual checks of the oil level at reduced not to exceed intervals, until replacement of faulty units.

The engine TC Holder is currently developing a modification that will address the unsafe condition identified in this AD; once such modification is developed, approved and available, further mandatory actions might be considered.

This Correction is issued to amend the AD number heading: It was PAD, it is AD.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

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

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 99 products of U.S. registry. We also estimate that it will take about 2.5 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD to the U.S. operators to be $21,038 or $212.50 per product.

In addition, we estimate that any necessary follow-on actions would take about 1 work-hour and require parts costing $9,000, for a cost of $9,085 per product. We have no way of determining the number of products that may need these actions.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on July 23, 2010 (75 FR 43101). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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

Carlo Cardu of PIAGGIO AERO INDUSTRIES S.p.A states that both the left-hand and right-hand hose assembly, part number (P/N) 80-337276-001, must be replaced at the same time with a new hose assembly, P/N 80-337284-001, in order to terminate the repetitive inspection requirement. This requirement is specified in PIAGGIO AERO INDUSTRIES S.p.A. Service Bulletin (Mandatory) N.: 80-0175, Rev. N. 1, dated May 14, 2010.

The commenter requests clarification of this requirement in the final rule AD action.

We agree with the commenter. Adding this clarification will ensure that both hose assemblies are replaced at the same time and will clarify the intent of the AD issued by the foreign airworthiness authority and the manufacturer's service bulletin.

We are changing the final rule AD action based on this comment.

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

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

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 99 products of U.S. registry. We also estimate that it will take about 5 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $42,075, or $425 per product.

In addition, we estimate that any necessary follow-on actions will take about 32 work-hours and require parts costing $3,700, for a cost of $6,420 per product. We have no way of determining the number of products that may need these actions.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to the specified products. That NPRM was published in the Federal Register on July 7, 2010 (75 FR 38941). That NPRM proposed to require replacing aluminum fire extinguisher discharge tubes with new, improved tubes; checking the fire extinguisher container for certain serial numbers; replacing fire extinguisher containers that have affected serial numbers; inspecting the pressure indicator on certain fire extinguisher containers for discrepancies; and performing corrective action if necessary.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

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

We estimate that this AD affects 322 airplanes of U.S. registry. We also estimate that it will take 5 work-hours per product to comply with this AD. The average labor rate is $85 per work-hour. Required parts cost is minimal. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $136,850, or $425 per product.

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

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

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

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

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

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

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

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

On July 29, 2010, the FAA published in the Federal Register a notice of proposed rulemaking to establish controlled airspace at Clifton/Morenci, AZ (75 FR 44725). 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 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, 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 airspace extending upward from 700 feet above the surface, at Greenlee County Airport, Clifton/Morenci, CA, to accommodate IFR aircraft executing new RNAV (GPS) SIAPs at the airport. This action is necessary for the safety and management of IFR operations.

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 Greenlee County Airport, Clifton/Morenci, AZ.

Section 235(a) of the CPSIA amended section 3(a)(2) the Consumer Product Safety Act (“CPSA”) by creating a new definition of “children's product.” 15 U.S.C. 2052(a)(2). “Children's product” is defined as “a consumer product designed or intended primarily for children 12 years of age or younger.” Several CPSIA provisions use the term “children's product.” Section 101(a) of the CPSIA provides that, as of August 14, 2009, children's products may not contain more than 300 parts per million (ppm) of lead. Section 102 of the CPSIA requires third party testing of certain children's products, and section 103 of the CPSIA requires tracking labels for children's products.

The statutory definition of “children's product” also specifies certain factors that are to be taken into consideration when making a determination about “whether a consumer product is primarily intended for a child 12 years of age or younger.” These factors are:

• A statement by a manufacturer about the intended use of such product, including a label on such product if such statement is reasonable.

• Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.

• Whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger.

• The Age Determination Guidelines issued by the Commission staff in September 2002 and any successor to such guidelines.

In the Federal Register of April 20, 2010 (75 FR 20533), the Commission published a proposed interpretative rule to help interested parties understand how the Commission will determine whether a particular consumer product is a “children's product.” By this rule, the Commission intends to clarify its interpretation of the statutory requirements and provide guidance on sections 101, 102, and 103 of the CPSIA with regard to children's products. The language in the preamble of this rule and the preamble of the proposed rule (75 FR at 20533) (to the extent the proposed rule was not altered by the final rule) may be consulted in determining its administrative construction and meaning. The Commission recognizes that the determination of whether a product meets the definition of a children's product depends on factual information that may be unique to each product and, therefore, would need to be made on a case-by-case basis. Given the factual nature of the inquiry, this rule is intended to give interested parties a better understanding of our approach in evaluating children's products. This document does not impose any additional requirements beyond those in the CPSIA, but informs the public of the Commission's interpretation of the term “children's product.” The proposed interpretative rule would create a new section in the CFR interpreting the definition of children's product and elaborating on the accompanying statutory factors.

The Commission notes that while all four factors are considered, certain elements of the factors are common to many children's products and cut across numerous product categories. These elements are decorations or embellishments with childish themes that invite use by a child 12 years of age or younger, sizing a product for a child, or marketing a product in a way designed to make it appeal primarily to children.

The Commission received numerous comments from individuals and groups, including consumers, consumer organizations, manufacturers, trade associations, and testing laboratories. Several commenters supported the proposed rule; other commenters sought to clarify, expand, or limit the scope of the rule.

We initially proposed this section under Chapter II of Title 16, Part 1500 of the Federal Hazardous Substances Act (“FHSA”). However, because the definition of children's product amends section 3(a)(2) of the Consumer Product Safety Act (“CPSA”), on our own initiative, we have renumbered the final rule to become a new Part 1200, Definitions, under Subchapter B—Consumer Product Safety Act Regulations.

As a result of our decision to place the final rule in a new part 1200, we have, on our own initiative, created a new § 1200.1 to describe the purpose of the new part 1200. Section 1200.1 states that part 1200 is intended to provide guidance on the definition of children's product and the factors considered for making determinations regarding children's products as set forth under 15 U.S.C. 2052(a)(2). Additionally, proposed § 1500.92, “Definition of children's product,” is now renumbered as § 1200.2 in the final interpretative rule.

We describe and respond to the comments in part B of this document and also describe the final rule. To make it easier to identify comments and our responses, the word “Comment,” in parentheses, will appear before the comment's description, and the word “Response,” in parentheses, will appear before our response. We also have numbered each comment to help distinguish among different comments. The number assigned to each comment is purely for organizational purposes and does not signify the comment's value, importance, or the order in which it was received.

1. Definition of “Children's Product”—§ 1200.2(a)(2) (Formerly § 1500.92(a)(1)). Proposed § 1500.92(a) would provide that, under section 3(a)(2) of the CPSA, a children's product means a consumer product designed or intended primarily for children 12 years of age or younger. We interpreted the term “designed or intended primarily” to apply to those consumer products mainly for children 12 years old or younger. A determination of whether a product is a “children's product” will be based on consideration of the four specified statutory factors. In addition, because the statutory factors incorporate the concept of “use” by the child in some manner, proposed § 1500.92(a)(1) interpreted “for use” by children 12 years or younger generally to mean that children will physically interact with such products based on the reasonably foreseeable use and misuse of such products.

(Comment 1) —Several commenters state that the definition should be clear that children's products are only those designed or intended by the manufacturer to be primarily for children 12 years of age or younger and that a product falls outside the scope of the definition if the product was designed or intended primarily by the manufacturer for older children or adults. In addition, some commenters request that the Commission limit the scope of the definition by emphasizing that the manufacturer's intent is the key factor for evaluating whether a consumer product is a children's product. According to these commenters, the interpretative rule should make clear that the remaining statutory criteria would be subordinate to statements made by manufacturers about the intended age of the users.

(Response 1) —We disagree that a determination of what is a children's product should be based mainly on the manufacturer's intent. The statute provides that the definition of a “children's product” is a consumer product designed or intended primarily for children 12 years of age or younger. In determining whether a consumer product is primarily intended for a child 12 years of age or younger, section 3(a)(2)(A) through (D) of the CPSA expressly mandates an analysis of four factors that “shall be considered”: (1) A statement by the manufacturer about the intended use of the product, including a label on such product if such statement is reasonable; (2) whether the product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger; (3) whether the product is commonly recognized by consumers as being intended for use by a child 12 years of age or younger; and (4) the Age Determinations Guidelines issued by the Commission staff in September 2002, and any successor to such guidelines. All of these factors will be considered in each case to the extent that they are applicable.

The manufacturer's statement of intent, including labeling, is only one of four factors that we must consider. While we agree that the manufacturer's statement of intent plays an important role in making initial children's product determinations, it is not necessarily determinative, or entitled to greater weight than any other factor. Courts have held that, as a general rule, when a statute requires an agency to consider a factor, the agency must reach “an express and considered conclusion” about the bearing of the factor, but need not give “any specific weight to the factor.” Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 516 (DC Cir. 1983) (quoting Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045 (DC Cir. 1978)). At a minimum, all the statutory factors must be considered when determining whether a particular consumer product is considered to be intended primarily for children 12 years of age or younger, and we will not initially assign any more or less weight to any individual factor.

(Comment 2) —Other commenters state that the proposed definition of children's product should not contain a definition of “for use” by children that is based on “physical interaction” and “foreseeable use and misuse” of such products by children. According to the commenters, the requirement that children physically interact with such products would capture many household products that would not be designed or intended primarily for children 12 years of age or younger.

(Response 2) —We disagree that the interpretation of “for use” would capture general use products that are not primarily intended for use by children. We interpret “for use” generally to mean physical use of a product in order to distinguish products, such as diaper bags that are intended to be used with children by the parent or caregiver from products that are intended for use by children. Products that are for use by children generally are those with which they will interact or have direct physical contact, such as with the diaper itself. There also can be children's products where the interaction is not direct physical contact, such as a mobile hung over an infant's crib, where the child's interaction with the mobile is to be entertained, soothed, or transitioned to sleep (to mention a few of the purposes stated in the advertisements for these products).

Contrary to the commenters' assertions, many household products are not primarily intended for use by children, but may be touched by children. Products that are considered general use products, such as televisions, stereo equipment, and appliances, do not become children's products simply because children may have contact with them because the products are not designed or intended primarily for use by children 12 years of age or younger.

When evaluating products, the Commission not only considers the manufacturer's statement of intended use, but the product's reasonably foreseeable use (i.e., what a child using the product may reasonably be expected to do with the product). The question of whether there will be reasonably foreseeable use of a product by a child is a determination that is made initially by the manufacturer. We agree that foreseeable misuse in this context may be difficult for a manufacturer to determine. An analysis of the foreseeable uses should be adequate to make the initial determination as to whether a product is a children's product. We have revised the final rule to reflect these changes and advise readers to disregard the discussion of misuse in the preamble to the proposed rule (75 FR at 20535).

(Comment 3) —A few commenters state that the proposed interpretative rule affects other requirements previously established for toys and children's products. Specifically, the commenters give as an example board/table games, which were identified under the Age Determination Guidelines as being appropriate for children in the 6-year-old range. The commenters assert that the games would have to comply with ASTM F963 (a toy standard that is now a mandatory consumer product safety standard pursuant to section 106 of the CPSIA), applicable FHSA requirements under 16 CFR 1500.50 through 1500.53, lead in surface coatings under 16 CFR 1303, and phthalates requirements of the CPSIA. If the games are general use products, the commenters claim that such products would not be required to comply with the lead in substrate requirements, or the tracking label requirements, or the mandatory third party testing requirements under the CPSIA.

(Response 3) —We recognize that some board games could be treated differently under separate provisions of the CPSIA, the cited FHSA regulations, and ASTM F963. In most places, however, the statutes and regulations can be read consistently. For example, to the extent that toys or other articles are subject to small parts testing because they are intended for use by children under 3 years of age, it is reasonable to conclude that they are children's products. Likewise, for toys and other articles intended for use by children under 8 years of age that are subject to the use and abuse tests at 16 CFR 1500.50 through 1500.53, and the sharp points and edges tests at 16 CFR 1500.48 through 1500.49, such products would also logically be considered children's products. We have added the following sentences to clarify this in the rule. The final interpretative rule now states in relevant part:

(Comment 4) —One commenter states that the definition of children's products should include pet foods. Another commenter states that adult absorbent care products should be distinguished from children's diapers.

(Response 4) —Pet foods and adult absorbent products are outside the scope of this interpretative rule because these products are regulated under the Federal Food, Drug, and Cosmetic Act (“FFDCA”). 21 U.S.C. 201, et seq. Pet food falls within the definition of “food” at section 201(f) of the FFDCA, which defines “food,” in part, as “articles used for food or drink for man or other animals.”

As for diapers, although children's diapers are considered children's products, adult absorbent products are devices as defined at section 201(h) of the FFDCA, and the Food and Drug Administration classifies a “protective garment for incontinence” as a class I device ( see 21 CFR 876.5920).

2. Definition of “General Use Product”—§ 1200.2(b)(1) (Formerly § 1500.92(b)(1)). Proposed § 1500.92(b)(1) would define a general use product to mean a consumer product that is not designed or intended primarily for use by children 12 years old or younger. The proposal also would interpret a general use product as a consumer product “mainly for consumers older than age 12” and would explain that some products may be designed or intended for consumers of all ages, including children 12 years old or younger, but are intended mainly for consumers older than 12 years of age. The proposal would provide that, “[e]xamples of general use products may include products with which a child would not likely interact, or products with which consumers older than 12 would be as likely, or more likely to interact. Products used by children 12 years of age or younger that have a declining appeal for teenagers are likely to be considered children's products.”

(Comment 5) —Several commenters would have us make explicit that, if a product is as likely or more likely to be used by a child older than 12 years of age than by a child 12 years of age or younger, the product may not be considered a children's product. Other commenters state that the terms “as likely” and “just as appealing” (which appeared in the preamble to the proposed rule and not in the codified text itself ( see 75 FR at 20534)) to compare younger and older children adds subjectivity and uncertainty to the determination process. These commenters believe that, if a determination is not clear cut, the Commission should err in protecting child safety and health. In addition, the commenters state that products having intrinsic play value for young children should be considered children's products.

(Response 5) —A children's product is a consumer product designed or intended primarily for children 12 years of age or younger. General use products are those consumer products designed or intended primarily for consumers older than age 12. As we stated in the preamble to the proposed rule, “if an older child or adult is as likely, or more likely to interact with the [product] than a child, such a [product] would not be a product designed or intended primarily for children 12 years of age or younger, and thus, would not be considered a “children's product.” See 75 FR at 20534. We will consider all four of the statutory factors to determine if a product is primarily intended for children 12 years of age or younger, always keeping in mind that one of the Commission's most important mandates is to protect children's health and safety.

We disagree with the comment that any product that has intrinsic play value for young children would automatically be considered a children's product. Young children often find intrinsic play value in a number of general use products, such as pots and pans or keys, but they do not become children's products simply because children may play with them. The Commission has other statutory authorities to address nonchildren's products that may pose a risk to children.

3. Other products specifically not intended for use by children 12 years of age or younger—§ 1200.2(b)(2) (Formerly § 1500.92(b)(2)). Proposed § 1500.92(b)(2) would state that products, such as cigarette lighters, candles, and fireworks, which the Commission has traditionally warned adults to keep away from children, are not subject to the CPSIA's lead limits, tracking label requirement, and third-party testing and certification provisions. Similarly, this section would provide that products that incorporate performance requirements for child resistance are not children's products because they are designed specifically to ensure that children cannot access the contents. This would include products such as portable gasoline containers and special packaging under the Poison Prevention Packaging Act.

We did not receive any comment on this provision. Therefore, other than renumbering the provision to be § 1200.2(b)(2), we have finalized this section without change.

4. Factors Considered—§ 1200.2(c) (Formerly § 1500.92(c)). Proposed § 1500.92(c) would set forth the statutory factors that must be considered to determine whether a consumer product is primarily intended for a child 12 years of age or younger.

We did not receive any specific comment on this provision. Therefore, other than renumbering the provision to be § 1200.2(c), we have finalized this section with a nonsubstantive change.

5. Manufacturer's Statement—§ 1200.2(c)(1) (Formerly § 1500.92(c)(1)). Proposed § 1500.92(c)(1) would explain that a manufacturer's statement about the product's intended use, including the product's labels, should be reasonably consistent with the expected use patterns for a product. This section also would provide that, “[a] manufacturer's statement that the product is not intended for children does not preclude a product from being regulated as a children's product if the primary appeal of the product is to children 12 years of age or younger. Similarly, a label indicating that a product is for ages 10 and up does not necessarily make it a children's product if it is a general use product.” The manufacturer's label, in and of itself, is not considered to be determinative.

(Comment 6) —One commenter would revise the interpretative rule to clarify the “gray” area of products designed or intended both for children 9 to 12 years old and for teenagers and older. The commenter states that the manufacturer's statement should refer to ages 9 and up, rather than ages 10 and up.

(Response 6) —We agree that the hardest questions regarding determinations on whether a product is primarily intended for children 12 years of age or younger will often involve this age group. For example, the requirements for the use and abuse test methods and for the sharp points and edges test methods discussed in part B.1 of this document and § 1200.2(a) do not extend past 96 months (8 years of age). The Age Determination Guidelines group 9 to 12-year-olds together because these older children have advanced cognitive and motor skills, as well as the ability to care for their belongings, compared to younger children. Thus, products in this category may have characteristics that are also appropriate for products intended for older children and adults. A number of products intended for this age group (9 and up, 10 and up, 11 and up, and 12 and up) will require further evaluation. However, we have revised the final rule to include ages 9 and up, rather than ages 10 and up to reflect the age groups discussed in the Age Determination Guidelines. The sentences now state, “Similarly, a label indicating that a product is for ages 9 and up does not necessarily make it a children's product if it is a general use product. Such a label may recommend 9 years old as the earliest age for a prospective user, but may or may not indicate the age for which the product is primarily intended.”

6. Packaging, Display, Promotion or Advertising—§ 1200.2(c)(2) (Formerly § 1500.92(c)(2)). Proposed § 1500.92(c)(2) would restate the statutory factor on whether a product is represented in its packaging, display, promotion, or advertising as appropriate for use by children 12 years of age or younger.

We did not receive any specific comment on this provision. Therefore, other than renumbering the provision to be § 1200.2(c)(2), we have finalized this section without change.

7. Express or Implied Representations—§ 1200.2(c)(2)(i) (Formerly § 1500.92(c)(2)(i)). Proposed § 1500.92(c)(2)(i) would explain that, for example, advertising that expressly declares that the product is intended for children 12 years of age or younger will support a determination that a product is a children's product. While, for example, advertising showing children 12 years of age or younger using the product may support a determination that the product is a children's product. The proposal would state that such representations may be found in packaging, text, illustrations and/or photographs depicting consumers using the product, instructions, assembly manuals, or advertising media used to market the product.

We did not receive any specific comment on this provision. Therefore, other than renumbering the provision to be § 1200.2(c)(2)(i), we have finalized this section without change.

8. Product's Physical Location—§ 1200.2 (c)(2)(ii) (Formerly § 1500.92(c)(2)(ii)). Proposed § 1500.92(c)(2)(ii) would state that the product's physical location near, or visual association with, children's products may be a factor in making an age determination, but is not determinative.

(Comment 7) —One commenter states that if a store decides to place a youth basketball in a toy shop section, instead of the teen and adult sporting goods section, it does not make it less of a basketball, and the location should not be determinative in the analysis.

(Response 7) —We agree that a product's location, while important, is not determinative. The physical placement of a product in a store may not be known by the manufacturer when an age determination is made, and manufacturers may not have any control over the placement of their products. However, if such marketing information is known, it should be considered in the determination analysis because the physical location of a product in a store is part of the product's marketing. In addition, the Commission may consider the kind of stores to which a product is distributed in determining whether it is designed or primarily intended for children 12 years of age or younger.

(Comment 8) —One commenter states that the packaging, marketing, and placement in a retail store should be the main indication that the product is targeting children 12 years of age and under. The commenter asserts that the interaction between this factor and the others should be clearly stated.

(Response 8) —While the packaging, marketing, and store placement will be considered, these factors do not necessarily outweigh the other factors that may need to be considered in making an age determination. We will weigh all of the relevant factors. Therefore, other than renumbering the provision to be § 1200.2(c)(2)(ii), we have finalized this section with nonsubstantive changes.

9. Marketing with Other Products—§ 1200.2(c)(2)(iii) (Formerly § 1500.92(c)(2)(iii)). Proposed § 1500.92(c)(2)(iii) would state that the product's association or marketing in conjunction with nonchildren's products may not be determinative as to whether the product is a children's product. For example, packaging and selling a stuffed animal with a candle would not preclude a determination that the stuffed animal is a children's product since stuffed animals are commonly recognized as being primarily intended for children.

(Comment 9) —One commenter states that stuffed animals sold with adult products should be considered general use items since the manufacturer intended the product for distribution to adults.

(Response 9) —We disagree with the commenter. Packaging of toys or other articles appropriate for children along with adult products occurs occasionally. Therefore, we will not assume that all products in a copackaged product are general use products if the copackaged product contains toys or other articles that are appealing to and more likely to be used by children.

Therefore, other than renumbering the provision to be § 1200.2(c)(2)(iii), we have finalized this section without change.

10. Commonly Recognized by Consumers—§ 1200.2(c)(3) (Formerly § 1500.92(c)(3)). Proposed § 1500.92(c)(3) would state that the consumer perception of the product's use by children, including its reasonably foreseeable use and misuse, will be evaluated. In addition, the proposed interpretative rule would state that sales data, market analyses, focus group testing, and other marketing studies may help support an analysis regarding this factor.

We did not receive any specific comment on this provision. Therefore, other than renumbering the provision to be § 1200.2(c)(3), and removing the reference to “misuse” for the same reasons as discussed in Response 2, we have finalized this section without change.

11. Additional Features and Characteristics of Children's Products—§ 1200.2(c)(3)(i) (Formerly § 1500.92(c)(3)(i)). Proposed § 1500.92(c)(3)(i) would list additional considerations that may help distinguish children's products from nonchildren's products. For example, the proposed rule would include considerations such as small sizes that would not be comfortable for the average adult, exaggerated features (large buttons, bright indicators) that simplify the product's use, safety features that are not found on similar products intended for adults, colors commonly associated with childhood (pinks, blues, bright primary colors), decorative motifs commonly associated with childhood (such as animals, insects, small vehicles, alphabets, dolls, clowns, and puppets); and features that do not enhance the product's utility (such as cartoons), but contribute to its attractiveness to children 12 years of age or younger.

We did not receive any specific comment requesting modification of this provision. Therefore, other than renumbering the provision to be § 1200.2(c)(3)(i), we have finalized this section without change.

12. Principal Use of Product—§ 1200.2(c)(3)(ii) (Formerly § 1500.92(c)(3)(ii)). Proposed § 1500.92(c)(3)(ii) would state that a product's principal use may help consumers distinguish children's products from nonchildren's products. The proposed interpretative rule would explain that just because an item could be used as a children's product, such as when a child pretends that a broom is a horse, that does not mean the item is a children's product because the broom's principal use is for sweeping.

We did not receive any specific comment on this provision. Therefore, other than renumbering the provision to be § 1200.2(c)(3)(ii), and rephrasing the provision for clarity, we have finalized this section without change.

13. Cost—§ 1200.2(c)(3)(iii) (Formerly § 1500.92(c)(3)(iii)). Proposed § 1500.92(c)(3)(iii) would state that the cost of a given product may influence consumer perception regarding the age of intended users.

(Comment 10) —A few commenters state that cost should not be a factor because many products, such as craft products and Halloween products, are low cost, and that this factor does not correlate with whether the products are more likely to be given to children. Another commenter states that we should clarify the consideration of “cost” in determining what is a children's product and include representative monetary frameworks for some categories.

(Response 10) —Although the cost of a product, by itself, is not determinative, the cost of an item can be a consideration. As stated in the preamble of the proposed rule:

14. Children's Interactions—§ 1200.2(c)(3)(iv) (Formerly § 1500.92(c)(3)(iv)). Proposed § 1500.92(c)(3)(iv) would explain that products for use in a child's environment by the caregiver, but not for use by the child, would not be considered primarily intended for a child 12 years of age or younger.

(Comment 11) —One commenter disagrees with the Commission's analysis of a child's interaction with certain items discussed under furniture and fixtures and the interaction's effect on whether or not a product was a children's product. The commenter notes that the Commission stated in the proposed rule that “a humidifier may be used in a child's room, but this does not make it for children to use; instead, adult caregivers use the humidifier to modify the air in a child's room.” While agreeing that an ordinary household humidifier is a general use product, the commenter states that a humidifier that is composed of colored plastic and shaped like a baby animal with a smile on its face is not equally likely to be purchased for and used by adults and children; the humidifier is designed to appeal primarily to young children and used in a young child's room. The commenter notes that the child's use of the product is indirect in that the child uses it by benefitting from the steam it emits. The commenter also questions the Commission's interpretation of “interaction” in the example of a lamp that has a childish theme (for example, a nonmovable fire truck with a Dalmatian) but does not have “play value” or features that add play value or other features that would invite physical interaction with the lamp beyond turning it on or off. The commenter believes such childish embellishments are expressly designed to appeal primarily to children and to be used in a child's room, not in that of an adult.

(Response 11) —We agree that products that are designed or intended primarily for children 12 years of age or younger would be considered children's products and that the child's interaction with the product does not have to be physical, although that is generally the case. We noted earlier the example of the crib mobile, where the interaction is not direct physical contact, but where the child's interaction with the mobile is to be entertained, soothed, or transitioned to sleep (to mention a few of the purposes stated in the advertisements for these products). Whether these products are children's products will be determined by an evaluation of all the factors listed in the statute, just as with any other product. Adult lamps or ordinary household humidifiers that are placed in any room of a home would be considered general use products. The ability or inability of a young child to turn a lamp (or other product) on or off would not determine whether or not it is a children's product. Attempting to make a distinction as to whether a product is intended for children 12 years of age or younger, based on some age under thirteen at which the interaction may change to direct physical interaction with a product creates artificial age distinctions that are not supported by the statutory language. This represents a change from the proposed rule, and any language in the preamble to the contrary should be disregarded, and the final rule is revised to reflect this change.

A home furnishing product that is embellished or decorated in a manner that is appealing to children 12 years of age or younger and is marketed to be placed in the rooms of such children could be considered a children's product. Such embellishment would not be considered in isolation, however. Features that invite or entice the child to use the product, or invite physical interaction, would support such a determination along with how the product is marketed and advertised and any manufacturer's statement of intended use.

15. The Age Determination Guidelines—§ 1200.2(c)(4) (Formerly § 1500.92(c)(4)). Proposed § 1500.92(c)(4) would quote the statutory factor at section 3(a)(2)(D) of the CPSA regarding the Age Determination Guidelines (“Guidelines”) issued by the Consumer Product Safety Commission staff in September 2002 and any successor to such guidelines. The proposal also would explain that a product's appeal to different age groups and the capabilities of those age groups may be considered when making determinations about the appropriate user groups for products.

(Comment 12) —A few commenters state that the Guidelines are only intended to evaluate the play value of toys and should not be expanded to evaluate whether children of certain ages can successfully perform specific tasks if the product or type of product is not specifically mentioned by the Guidelines.

(Response 12) —We disagree with the commenters. Congress has mandated that the Age Determination Guidelines be one of the four statutory factors considered in determining whether a product is intended primarily for children. The Guidelines generally describe the factors that appeal to children and the activities that they can perform across childhood and can be used in making an age determination of any product, whether it is a toy or other article intended for use by children. The Guidelines provide information about social, emotional, cognitive, and physical developments during childhood. That information applies to many products not actually mentioned by name in the Guidelines.

16. Examples—§ 1200.2(d) (Formerly § 1500.92(d)). Proposed § 1500.92(d) would provide examples to help manufacturers understand what types of products would constitute a children's product under the CPSA.

We did not receive any specific comment on this provision. Therefore, other than renumbering the provision to be § 1200.2(d), we have finalized this section without change.

17. Furnishings and Fixtures—§ 1200.2(d)(1) (Formerly § 1500.92(d)(1)). Proposed § 1500.92(d)(1) would give examples of general home furnishings and fixtures (such as ceiling fans, humidifiers, and air purifiers) that often are found in children's rooms or schools, but would not be considered children's products unless they are decorated or embellished with a childish theme, have play value, and/or are sized for a child. The proposal also would give examples of home or school furnishings that are primarily intended for use by children and considered children's products, such as infant tubs, bath seats, and child-sized chairs. We also stated that decorative items, such as holiday decorations and household seasonal items that are intended only for display and with which children are not likely to interact, are generally not considered children's products because they are intended to be used by adults.

(Comment 13) —One commenter states that hooks should be considered general use products, whether or not they are embellished with a children's theme.

(Response 13) —Any home furnishing or fixture that is decorated or embellished with a childish theme and invites use of the product by the child, is sized for a child, or is marketed to appeal primarily to a child, could be found to be a children's product designed or intended primarily for children 12 years of age or younger, such as, for example, clothing hooks embellished with a childish theme to make them appear to be pirate's hooks. As we noted in the preamble to the proposed rule, unembellished clothing hooks would be considered general use products, unless a manufacturer attaches the hook to a children's product, such as a child-sized desk (thereby making it clear the hook is intended to be used primarily by a child) in which case that hook would be considered a children's product.

(Comment 14) —One commenter seeks clarification on the factors on furniture and collections of furniture that are suitable for children from birth through college. According to the commenter, manufacturers use various terms that are confusing, including “juvenile” and “youth” furniture. In addition, the commenter requests an ability to obtain informal and quick opinions from the Commission staff, to make such opinions publicly available on the web, and to create a mechanism for resolving disputes.

(Response 14) —The manufacturer is in the best position to initially determine whether a “collection” of furniture is designed or intended primarily for children 12 years of age or younger. However, to the extent that children 12 years of age or younger will be using such furniture from birth or toddler age through their teenage years, we consider such furniture to be children's products because children will be interacting with such furniture throughout their childhood. These items are likely to be sized for small children and may have other characteristics, such as bright colors or embellishments that would be appealing to children. Although, such products may come with extension kits or other modifications to make them more appropriate for older children, the furniture is intended primarily for use by young children who may also use such furnishings later as they become older. To provide guidance regarding determinations that have been made by Commission staff, as appropriate, we will post on our Web site, http://www.cpsc.gov, some products that have been determined to be either children's products or general use products, subject to our public disclosure of information requirements under 15 U.S.C. 2055, CPSC regulations at 16 CFR part 1101, and the availability of CPSC resources.

(Comment 15) —One commenter requests that general home furnishings include carpets and rugs as examples.

(Response 15) —To provide additional clarity to this section, the final rule includes carpets and rugs in the examples of general home furnishings and fixtures. Generally, home furnishings and fixtures would not be considered children's products unless they are decorated or embellished with childish themes and invite use by a child 12 years of age or younger, are sized for a child, or are marketed to appeal primarily to children. In the case of rugs and carpets, the particular color or size of a rug or carpet, considered alone, would not be sufficient to make a determination that a rug or carpet is a children's product.

(Comment 16) —Another commenter requests that general home furnishings include holiday decorations, regardless of theme, because such products are for display only and are not intended to be children's products. One commenter also states that not all Halloween products should be considered children's products.

(Response 16) —We agree, in part, and disagree, in part, with the commenters. We agree that most holiday decorations, including seasonal decorations, are not children's products, even though they may appeal to children. However, certain products such as Halloween costumes, that are considered toys and sold and marketed in toy stores, would continue to be considered children's products if intended primarily for children 12 years of age or younger.

18. Collectibles—§ 1200.2(d)(2) (Formerly § 1500.92(d)(2)). Proposed § 1500.92(d)(2) would distinguish adult collectibles from children's collectibles based on themes that are inappropriate for children 12 years of age or younger; features that preclude use by children during play, such as high cost, limited production, and display features (such as hooks or pedestals); and whether such items are marketed alongside children's products.

(Comment 17) —A few commenters request that model trains be specifically included in the definition of general use products. The commenters state that the average age of a model railroader is 53 years old and that there is a level of sophistication required to operate the locomotives. Additionally, the commenters note that model trains may be costly, with prices from $50 up to $1,575.

(Response 17) —We agree that certain model railroads and trains are not children's products given the large number of adult model railroad hobbyists, the costs involved, and the level of sophistication required to operate them. Model trains and model train accessories (such as scenery, scale buildings, and supplies), are made by model railway manufacturers who sell their trains at model train shops and model train hobby stores. Children's train sets may have childish themes and may be easier for a child to assemble and use. By contrast, model railroad hobbyists collect trains, build miniature landscapes for the trains, or even operate their own miniature railroads outdoors. Accordingly, the final rule adds “model railways and trains made for hobbyists” to the list of examples of “collectible” items that would be considered general use products.

(Comment 18) —One commenter asks that we add fragility of the materials as a consideration in determining collectibles. The commenter also requests a registry of collectibles or online listing to provide clear guidance.

(Response 18) —We stated in our example in proposed § 1500.92(d)(2) that collectible plush bears are those which have high cost, are highly detailed, with fragile accessories, display cases, and platforms. We believe that fragility of the materials may also be considered when assessing a collectible because children are less likely to be given items that can break. Accordingly, we have revised this section to include “fragile features” as a characteristic to help distinguish collectibles from children's products. The first sentence in this section now states, “Adult collectibles may be distinguished from children's collectibles by themes that are inappropriate for children 12 years of age or younger, have features that preclude use by children during play, such as high cost, limited production, fragile features, display features (such as hooks or pedestals), and are not marketed alongside children's products (for example, in a children's department) in ways that make them indistinguishable from children's products.”

As for the commenter's request regarding a registry of collectibles or online listing, as appropriate, we will post on our Web site, http://www.cpsc.gov, some products that have been determined to be either children's products or general use products by Commission staff, subject to our public disclosure of information requirements under 15 U.S.C. 2055, CPSC regulations at 16 CFR part 1101, and the availability of CPSC resources.

(Comment 19) —One commenter disputes the implication that collectibles must be of high cost or uniquely marked. The commenter asserts that labeling products “Not a toy” or “Not for use by children 12 and under” would be important elements in identifying such products as intended for adults.

(Response 19) —We agree that not all collectibles are high cost. High cost is simply one among several considerations we will evaluate when making a determination. Generally, many collectibles are of higher cost and/or marked to distinguish such products from similar children's products. The cost of an item, while not determinative, can be an important consideration in analyzing collectibles because very expensive collectibles are less likely to be given to children who may accidently destroy them. In addition, as discussed in part B.5 of this document, the statement by a manufacturer about the intended use of a product, including a label on such product, will be considered in making any age determination.

19. Jewelry—§ 1200.2(d)(3) (Formerly § 1500.92(d)(3). Proposed § 1500.92(d)(3) would provide characteristics for distinguishing children's jewelry from adult jewelry. For example, the proposed interpretative rule would explain that jewelry intended for children is generally sized, themed, and marketed to children and that characteristics such as size, very low cost, play value, childish themes on the jewelry, and sale with children's products may suggest that the jewelry is a children's product. The proposed interpretative rule also would explain that many aspects of an item's design and marketing are considered when determining the age of consumers for whom the product is intended and will be purchased. The proposed interpretative rule listed, as aspects of the item's design and marketing the following factors: Advertising; promotional materials; packaging graphics and text; size; dexterity requirements for wearing; appearance (coloring, textures, materials, design themes, licensing, level of realism); and cost.

(Comment 20) —One commenter disputes the considerations that are used in distinguishing adult jewelry from children's jewelry, including considerations such as dexterity requirements and play value. In addition, this commenter states that the proposed interpretative rule failed to include design drawings, brand plans, and compliance with standards for adult jewelry as considerations of a manufacturer's intent in developing a product. The commenter asserts that the proposed interpretative rule improperly expands the application of the Age Determination Guidelines to products other than toys.

(Response 20) —We disagree that we place an undue emphasis on dexterity or play value when making age determinations. Dexterity requirements may be useful for making distinctions between children's and adult jewelry. While some elastic bracelets may be useful to people suffering from arthritis, delicate clasps are difficult for younger children to use, which would indicate that such jewelry may be intended for older consumers. While jewelry is not considered a toy, some jewelry can have play value. The most common type of play associated with children's jewelry is role playing. However, although some general use products may have intrinsic play value, they do not become children's products based on that characteristic alone. Play value and dexterity are only two of the characteristics that are examined in making age determinations for jewelry.

Regarding the commenter's criticism that the proposed rule did not include design drawings, brand plans, and compliance with adult jewelry standards, the proposed interpretative rule specifically indicated that many aspects of an item's design and marketing are considered when determining the age of consumers for whom the jewelry is intended and by whom it will be purchased. The commenter states that design drawings and brand plans should be relevant considerations in making an age determination. We agree that such information is relevant to consider when available for review. Moreover, the manufacturer's intent in designing, branding, or developing a product is applicable to the factor regarding the statement by the manufacturer about the intended use of the product. This could include the manufacturer's compliance with state standards for adult jewelry. As discussed in § 1200.2(a)(1), the manufacturer's statement is only one of four statutory factors considered in making a determination.

Additionally, the Commission recognizes that the determination of whether a product is a children's product is based on whether it is designed or intended primarily for children 12 years of age or younger and not the frequency of such a product's appeal to adults. We have made this change to the rule to reflect this recognition.

We disagree that we improperly expanded the Age Determination Guidelines (2002) to cover products other than toys. The Guidelines are among the factors that must be considered when making determinations. The descriptions of factors that appeal to children and the activities that they can perform across childhood are described generally in the Guidelines for use in age determinations of any product, whether it is a toy or other article intended for children. The Guidelines provide information about social, emotional, cognitive, and physical developments during childhood that are applicable to many products that are not specifically named in the Guidelines.

20. DVDs, Video Games, and Computer Products — § 1200.2(d)(4) (Formerly § 1500.92(d)(4)). Proposed § 1500.92(d)(4) would consider most computer products and electronic media devices, such as CDs, DVDs, and DVD players, to be general use products. However, the proposal also would explain that some CDs and DVDs may have encoded content that is intended for and marketed to children, such as children's movies, games, or educational software. The proposed interpretative rule would explain that CPSC staff may consider ratings given by entertainment industries and software rating systems when making an age determination. The proposed interpretative rule would note that, among the CDs and DVDs that have content embedded that is intended for children, certain CDs and DVDs that contain content for very young children would not be handled or otherwise touched by children because they do not have the motor skills to operate media players and because such products, by themselves, do not have any appeal to children. Accordingly, the proposed interpretative rule would indicate that these types of CDs or DVDs would not be considered children's products because they are not used “by” children and children do not physically interact with such products. The proposed interpretative rule would say that CDs or DVDs and other digital media that may be handled by older children could be considered children's products if such movies, video games, or music were specifically aimed at and marketed to children 12 years of age or younger and have no appeal to older audiences.

(Comment 21) —Several commenters assert that an approach distinguishing CDs and DVDs for very young children who lack the motor skills to operate CDs and DVDs, from CDs and DVDs for older children who have such motor skills is a false distinction. These commenters state that a very young child is not allowed to handle a CD or DVD unless he or she learns to insert it properly into a CD or DVD player. The commenters claim that a child will interact much more with the CD or DVD player than he or she will interact with the CD or DVD itself. A commenter also states that the Commission's proposed guidelines regarding CDs provide no clear mechanism for manufacturers and distributors to interpret or implement the definition; that children's music is not marketed like toys as “age 3+” or “suitable for under 3”; and any such distinctions in children's music would be entirely arbitrary and meaningless. Another commenter found the DVD discussion to be confusing and thought it would be difficult to implement. The commenter suggested eliminating the distinction between products intended for nursery-aged children and those intended for the next age group and thought we should just consider all of those DVDs to be children's products. The commenter also said it would be easier to base the age determinations on the already established ratings systems.

(Response 21) —Upon further consideration, we agree that attempting to make a distinction about whether a CD or a DVD is a children's product based upon whether the intended audience for a CD or DVD is an infant or a slightly older child only further complicates the age determination. With respect to the CDs and DVDs, consistent with an analysis of other products, we must consider the four statutory factors to assess these products. CDs and DVDs could be considered children's products if such movies, video games, or music were specifically created for and marketed to children 12 years of age or younger and have little or no appeal to older audiences. The ratings and targeted age suitability given to the product will be considered when making an age determination. This represents a change from the proposed rule, and any language in the preamble to the contrary should be disregarded, and the final rule is modified to reflect this change.

It should be noted that the final rule also states that some media players or devices that play electronic content, if embellished or decorated with childish themes, sized for children, or marketed to appeal primarily to children, could be considered children's products because children 12 years of age or younger likely would be the main users of such items, and older children and adults would be unlikely to use such products.

(Comment 22) —One commenter sought clarification on how this section would affect the existing process for video game research and rating procedures regarding age. Another commenter states that the existing rating systems should be used to determine whether the product is intended for children aged 12 years and under.

(Response 22) —We do not expect that our definition of what is or is not a children's product to affect the research of products under development on children's electronic media. The definition would not affect existing rating mechanisms, which fall under the authority of the Federal Communications Commission. Video game rating systems would be considered by staff as one indicator of age range for purposes of age grading.

(Comment 23) —Other commenters ask that we add more products to a general use category, including game consoles, book readers, digital media players, cell phones, and digital assistant communication devices sized for use by adults, irrespective of any childish decorations, to avoid any confusion. Some commenters also seek clarification that an accessory to an electronic children's product (i.e., transformers, cables, and connectors) is not itself a children's product if it is not for use by children but is, instead, likely to be used by parents or guardians. One commenter states that DVDs are exempt from the small parts requirement under ASTM F963-08. Accordingly, this commenter seeks clarity on how children's DVDs would be treated.

(Response 23) —We believe that most of these product categories, including game consoles, book readers, digital media players, cell phones, and digital assistant communication devices, power adapters, data cords, and other accessories to such devices, that are intended for older children and adults, fall in the general use category. Accordingly, the final rule adds them as examples to the list of general use items, along with CD and DVD players. As noted earlier, the final rule also states that some media players or devices that play electronic content, if embellished or decorated with childish themes, sized for children, or marketed to appeal primarily to children, could be considered children's products because children 12 years of age or younger likely would be the main users of such items, and older children and adults would be unlikely to use such products.

The exemption from small parts for DVDs has no bearing on age determinations for DVDs made for children 12 years of age or younger. The small parts limitations are only applicable to toys for children younger than 3 years of age.

21. Art Materials — § 1200.2(d)(5) (Formerly § 1500.92(d)(5)). Proposed § 1500.92(d)(5) would consider art materials sized, decorated, and marketed to children 12 years of age or younger, such as crayons, finger paints, and modeling dough, to be children's products. The proposed interpretative rule would explain that crafting kits and supplies that are not specifically marketed to children 12 years of age or younger likely would be considered products intended for general use, but that the marketing and labeling of raw materials (such as modeling clay, paint, and paint brushes) may often be given high priority for these art materials because the appeal and utility of these raw materials has such a wide audience.

(Comment 24) —One commenter states that the emphasis on marketing will lead to confusion because many art tools are small and may also be used by an adult. The commenter states that a more compelling and logical framework is to consider the circumstances under which a child will be using the product. The commenter asserts that, if the product has an instructional purpose which will be under the supervision of an adult, such products should be considered general use products, including child-sized craft tools, child-sized musical instruments, child-sized saddles and equestrian equipment, and classroom science kits.

(Response 24) —Size, marketing, and other factors will be considered when making age determinations. If a distributor or retailer sells or rents a general use product in bulk (such as a raw art materials or art tools) through distribution channels that target children 12 years of age or younger in educational settings, such as schools, summer camps, or child care facilities, this type of a distribution strategy would not necessarily convert a general use product into a children's product. However, if the product is packaged in such a manner that either expressly states or implies with graphics, themes, labeling, or instructions that the product is designed or intended primarily for children 12 years of age or younger, then it may be considered a children's product if the required consideration of all four statutory factors supports that determination.

The level of expected adult supervision needed for a product is not generally useful when making a children's product determination. If the product otherwise meets the definition of “children's product,” the amount of supervision over the child's use of a children's product will not transform a children's product into a general use product. Accordingly, products such as small-sized craft tools, small-sized musical instruments, and small-sized saddles and equestrian equipment would be assessed on a case-by-case basis to determine whether such products are, in fact, children's products. We do note, however, that if the sizing of the product indicates that children 12 years of age or younger would be more likely to use such products than older children or adults, the product would likely fall under the children's product category, rather than the general use category.

The Commission, on its own initiative, is adding the words “art tools” to the final rule to better describe those materials, such as paint brushes, which may have a wide audience due to their appeal and utility and is adding a fuller explanation of distribution strategies that might target settings such as schools.

As for classroom science kits, we address such products in part B.23 of this document and its discussion of § 1200.2(d)(7).

(Comment 25) —One commenter states that duplicative third party testing under the CPSIA should not be required for products that are covered under the Labeling of Hazardous Art Materials Act (LHAMA). Accordingly, this commenter requests that LHAMA be included as a FHSA labeling law in addition to the guidance that most art materials are general use products.

(Response 25) —We disagree with the comment because we do not believe that LHAMA duplicates testing required under the CPSIA. LHAMA requires that the manufacturer, importer, or repackager of art materials have their product's formulation reviewed by a toxicologist for its potential to cause chronic adverse health effects. A conformance statement on the product is used to certify that the product has been so reviewed. However, the CPSIA introduces additional test requirements beyond what is required under LHAMA.

As for the commenter's request that we include LHAMA as a labeling requirement under the Federal Hazardous Substances Act (FHSA), LHAMA does not contain a performance standard similar to those in consumer product safety rules but rather requires labeling in the form of a conformance statement that the product formulation has been reviewed by a toxicologist. The requirements of LHAMA are similar to the labeling requirements of the FHSA, of which it is a part. Therefore, third party testing to LHAMA is not required. An art material designed or intended primarily for children 12 years of age or younger would have to be tested by a third party laboratory to demonstrate compliance with CPSIA, but it would not require third party testing and certification to the LHAMA requirements. For the same reasons, no general conformity certificate is required for general use art materials.

22. Books — § 1200.2(d)(6) (Formerly § 1500.92(d)(6)). Proposed § 1500.92(d)(6) would state that the content of a book can determine its intended audience. The proposed interpretative rule would explain that children's books have themes, vocabularies, illustrations, and covers that match the interests and cognitive capabilities of children 12 years of age or younger. The proposal also would explain that the age guidelines provided by librarians, education professionals, and publishers may be dispositive for determining the intended audience. Furthermore, some children's books have a wide appeal to the general public, and in those instances, further analysis may be necessary to assess who the primary intended audience is based on consideration of relevant additional factors, such as product design, packaging, marketing, and sales data.

(Comment 26) —One commenter asks us to clarify whether children's magazines are covered by the CPSIA. Another commenter states that sales data should not be considered for books since adults purchase books for children.

(Response 26) —Children's magazines are evaluated using the same principles as those that apply to children's books in the interpretative rule. If intended primarily for children 12 years of age or younger, magazines must comply with the CPSIA requirements for children's products. We only consider sales data to be relevant to the extent that it reveals where the products are sold, such as in a children's book or toy store.

23. Science Equipment — § 1200.2(d)(7) (Formerly § 1500.92(d)(7)). Proposed § 1500.92(d)(7) would consider microscopes, telescopes, and other scientific equipment that would be used by an adult, as well as a child, to be general use products. The proposed interpretative rule would explain that equipment with a marketing strategy that targets schools, such as scientific instrument rentals, would not convert such products into children's products if such products are intended for general use, regardless of how the equipment is leased, rented, or sold. However, the proposal would further explain that, in general, scientific equipment that is specifically sized for children and/or has childish themes or decorations intended to attract children is considered a children's product. Toy versions of such items are also considered children's products.

(Comment 27) —Several commenters state that school supplies, such as science equipment, writing devices, and musical instruments used in educational settings, should be considered general use items. They argue that many items that are specified in these curriculums can be easily found at department stores, hardware stores, grocery stores, and specialty shops. In addition, other commenters state that many science and math programs and kits are principally designed and used as instructional materials for teachers in a classroom setting. Accordingly, they request that we revise the rule to include such items as general use items when marketed and sold for the purpose of supervised, hands-on educational instruction. In addition, a few commenters request that pens, pencils, and other office supplies be specifically included as general use items because they are used mainly by the general public.

(Response 27) —We agree with the commenters that many math and science kits that are sent to schools for the purpose of teaching these subjects contain materials, such as rubber bands, staples, paper clips, and other items, that can be found in any hardware or grocery store. In determining whether these assembled products should now be considered children's products because of their new use, packaging, and marketing to schools, we consider the four specified statutory factors together as a whole. If a distributor or retailer sells or rents a general use product in bulk through distribution channels that target children 12 years of age or younger in educational settings, such as schools or summer camps, this type of a distribution strategy would not necessarily convert a general use product into a children's product. However, if the product is packaged in such a manner that either expressly states or implies with graphics, themes, labeling, or instructions that the product is designed or intended primarily for children 12 years of age or younger, then it may be considered a children's product if the required consideration of all four statutory factors supports that determination. Products mainly intended for use by the instructor would not be considered children's products.

Some pens and pencils are designed or intended primarily for children 12 years of age or younger. However, if a pen, pencil, or other office supply is not designed or intended primarily for children 12 years of age or younger, it would not be considered a children's product.

The Commission notes that, in the context of science equipment, size may be more pertinent to protective gear, such as gloves and aprons, in making an age determination than it would be to the scientific instruments themselves and is, on its own initiative, changing the final rule to reflect this.

24. Sporting Goods and Recreational Equipment—§ 1200.2(d)(8) (Formerly § 1500.92(d)(8)). Proposed § 1500.92(d)(8)) would consider sporting goods that are primarily intended for consumers older than 12 years of age to be general use items. The proposed interpretative rule would explain that regulation-sized sporting equipment, such as basketballs, baseballs, bats, racquets, and hockey pucks, are general use items even though some children 12 years of age or younger will use them. However, this section would provide that sporting goods become children's products when they are sized to fit children or are otherwise decorated with childish features that are intended to attract children 12 years of age or younger. Likewise, this section would provide that recreational equipment, such as roller blades, skateboards, bicycles, camping gear, and fitness equipment, are considered general use products unless they are sized to fit children 12 years of age or younger and/or are decorated with childish features by the manufacturer.

(Comment 28) —Several commenters state that sporting equipment intended for “tweens,” teens, and young adults should not be considered “children's products.” One commenter states that “legitimate” sporting goods should be general use products whether they are used by a 9-year-old or 13-year-old and that “size” is irrelevant to making the determination. The commenter asserts that their uses and essential purposes are no different than sporting equipment used by teens. Another commenter states that the cost of testing these products was too high and resulted in delays in manufacturing.

(Response 28) —We agree that products sized for general use are not converted into children's products because they are also used by children 12 years of age or younger (such as “tweens” whom, based upon the Age Determination Guidelines issued by the Consumer Product Safety Commission staff in September 2002, for purposes of this response, we consider to be individuals under 13, but not younger than 9 years of age). Unless such items are specifically marketed to children or have extra features that make them more suitable for children than for adults, they would be considered general use products. However, we disagree that sizing of the sporting equipment would be irrelevant to the age determination. If children 12 years or younger would mainly use the product because it would be too small or inappropriate for older children to use, then it likely would be considered a children's product.

As for the comment regarding testing costs and manufacturing delays, such matters are outside the scope of this rulemaking. Comments related to testing and certification are addressed in separate rulemaking on product certification published in the Federal Register on May 20, 2010 (75 FR 28336). Additionally, the Commission recognizes that the use of the term “regulation sized sporting equipment” leaves room for confusion between whether the Commission is referring to youth regulation size or adult regulation size. Accordingly, the final rule is modified to reflect this consideration and renumbered as § 1200.2(d)(8).

(Comment 29) —One commenter states that the interpretative rule should be clear that a product sized for an adult, such as a baseball glove, is considered a general use product even if there is a cartoon character on it. In addition, the commenter asserts that a wading pool may be a children's product based on size alone, regardless of whether it contains additional play features, and requests a definition for “shallow” in reference to wading pool depth.

(Response 29) —We agree that the presence of a cartoon character on an adult-sized product is not sufficient to label a product as a children's product. Age determinations take into account the principal use patterns of a given product; so if a baseball glove is too large for children to use, it would not be intended for use by children 12 years of age or younger and therefore would not be a children's product, no matter how it is decorated.

In response to the comment regarding wading pools, we agree that such pools generally are intended for children even without childish themes or play features. The size, decorations, and depth of a pool may be sufficient to determine that a product is primarily intended for use by children. However, the Commission does not have regulations setting forth the dimensions of wading pools.

25. Musical Instruments—§ 1200.2(D)(9) (Formerly § 1500.92(d)(9)). Proposed § 1500.92(d)(9) would consider musical instruments suited for an adult musician as well as a child to be general use products. Instruments primarily intended for children can be distinguished from adult instruments by their size and marketing themes. The proposed interpretative rule also would explain that products with a marketing strategy that targets schools, such as instrument rentals, would not convert such products into children's products if such products are intended for general use, regardless of how the instruments are leased, rented, or sold. These instruments are intended by the manufacturer for use primarily by adults, although there also may be incidental use by children through such programs. However, this section also would provide that products that produce music or sounds in a manner that simplifies the process so that children can pretend to play an instrument are considered toys primarily intended for children 12 years of age or younger.

(Comment 30) —One commenter states that the proposed rule should explicitly exclude from the definition of children's product electronically-aided musical instruments and musical devices that are preprogrammed by the user or the manufacturer.

(Response 30) —We agree that the preprogrammed sounds and demonstration pieces in electronically-aided musical instruments would be considered general use products. However, toys that have preprogrammed sounds will continue to be considered children's products. Accordingly, we have revised the rule to add “including electronically-aided musical instruments” after “Musical instruments.”

The Commission notes that if a distributor or retailer sells or rents in bulk, general use musical instruments through distribution channels that target children 12 years of age or younger in educational settings, such as schools or summer camps, this type of a distribution strategy would not necessarily convert a general use product into a children's product. However, if the product is packaged in such a manner that either expressly states or implies with graphics, themes, labeling, or instructions that the product is designed or intended primarily for children 12 years of age or younger, then it may be considered a children's product if the required consideration of all four statutory factors supports that determination.

26. Other Issues

(Comment 31) —One commenter states that the effective date should be delayed to give manufacturers an opportunity to evaluate whether or not their products are children's products pursuant to this rule.

(Response 31) —Because this is an interpretative rule, a delayed effective date is not required by the Administrative Procedure Act (5 U.S.C. 553(d)).

(Comment 32) —A few commenters raise issues with footwear. These commenters state that there is no certainty as to whether an article of footwear is a children's product and that the issue is confused especially with youth footwear. According to the commenters, many 12-year-olds wear adult footwear and that size does not necessarily relate to age. The commenters request an objective standard of footwear of 24 centimeters (cm) or more as being intended for adults.

(Response 32) —We believe that the manufacturer is in the best position to make an initial determination regarding whether footwear is primarily intended for children 12 years of age or younger. However, we will rely on the statutory factors, rather than a single factor since it is possible that other features can strongly indicate that the footwear is intended primarily for children 12 years old or younger even though the length of the footwear exceeds 24 cm.

The Commission is adopting Part 44 to its Regulations under the Commodity Exchange Act as an interim final rule and is soliciting comment on all aspects of the rule. The Commission will carefully consider all comments received and will address them, where applicable, in connection with the permanent reporting rules required to be adopted by the Dodd-Frank Act.

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). 3 Title VII of the Dodd-Frank Act  4 amended the Commodity Exchange Act (“CEA”)  5 to establish a comprehensive new regulatory framework for swaps and security-based swaps. The legislation was enacted to reduce risk, increase transparency, and promote market integrity within the financial system by, among other things: (1) Providing for the registration and comprehensive regulation of swap dealers and major swap participants; (2) imposing clearing and trade execution requirements on standardized derivative products; (3) creating robust recordkeeping and real-time reporting regimes; and (4) enhancing the Commission's rulemaking and enforcement authorities with respect to, among others, all registered entities and intermediaries subject to the Commission's oversight.

Among other things, the Dodd-Frank Act requires that swaps be reported to a registered SDR or to the Commission if there is no registered SDR that would accept the swap. Section 723 of the Dodd-Frank Act adds Section 2(h)(5) to the CEA to require that pre-enactment swaps be reported to a registered SDR or to the Commission no later than 180 days after the effective date of that subsection. 6 By its terms, the effectiveness of this rule is governed by the effective date of the Dodd-Frank Act—July 16, 2011. Section 729 of the Dodd-Frank Act establishes, in new Section 4r of the CEA, reporting requirements that will remain in effect until the effective date of the permanent reporting rules to be adopted by the Commission pursuant to Section 2(h)(5) of the CEA.

Section 4r(a)(1) of the CEA, as amended, provides generally that each swap that is not accepted for clearing by any derivatives clearing organization (“DCO”) must be reported to a swap data repository (“SDR”) registered in accordance with new Section 21 of the CEA  7 or, where there is no SDR that would accept the swap, to the Commission within the time period prescribed by the Commission. Section 4r(a)(2) specifies that each swap entered into before the date of enactment of the Dodd-Frank Act, the terms of which had not expired by the date of enactment of that Act, must be reported to a registered SDR or to the Commission, and directs the Commission to promulgate, within 90 days of enactment of the Dodd-Frank Act, an interim final rule providing for the reporting of such swaps. Section 4r(a)(2)(A) directs that such swaps be reported by a date not later than (i) 30 days after issuance of the interim final rule; or (ii) such other period as the Commission determines to be appropriate.

Consistent with this mandate, the Commission is adopting, in new Part 44 of the Commission's regulations, Rule 44.02 to (i) establish a reporting time frame for unexpired pre-enactment swaps that is no later than 60 days from the date the appropriate SDR is registered with the Commission or by the compliance date established in the swap reporting rules required by Section 2(h)(5) of the CEA, whichever comes first; and (ii) require that counterparties specified in Section 4r(a)(3) report information concerning pre-enactment unexpired swaps to the Commission on request during the interim period. Finally, the Commission is specifying in an interpretive note (“Note”) to Rule 44.02(a) the information the Commission believes reporting entities should retain in order to comply with the reporting obligations in the rule.

Sections 723 and 729 of the Dodd-Frank Act establish requirements for the reporting of pre-enactment swaps to SDRs or to the Commission; each provides generally that swaps must be reported pursuant to such rules or regulations as the Commission prescribes. Section 729 provides that swaps entered into prior to the July 21, 2010 enactment date and outstanding on that date (hereafter “pre-enactment unexpired swaps”) must be reported to a registered SDR or the CFTC not later than 30 days after the CFTC issues an interim final rule  8 or such other period determined by the CFTC. Section 723 similarly provides that the Commission must promulgate a rule that pre-enactment swaps must be reported to a registered SDR not later than 180 days after the effective date of the subsection. 9 The inconsistencies between these two reporting provisions must be reconciled in order to eliminate uncertainty with respect to the actual reporting requirements for pre-enactment swaps.

Section 4r(a)(1) of the CEA, added by section 729 of the Dodd-Frank Act, provides generally that each swap that is not accepted for clearing by any DCO must be reported to an SDR described in new Section 21 of the CEA or, in the case where there is no SDR that would accept the swap, 10 to the Commission within the time period prescribed by the Commission. Specifically, pre-enactment swaps must, pursuant to new CEA Section 4r(a)(2)(A), be reported to a registered SDR, or to the Commission if no SDR would accept the swap, by a date that is not later than 30 days after the issuance of the interim final rule prescribed in new Section 4r(a)(2)(B)  11 or such other period as the Commission determines to be appropriate. Section 4r(a)(3) delineates the reporting obligations of the parties in specific circumstances. 12

Section 723 of the Dodd-Frank Act adds to the CEA new Section 2(h)(5), which similarly requires that the Commission adopt a reporting transition rule for swaps entered into before the date of enactment of that subsection. Section 2(h)(5) provides that such swaps shall be reported to a registered SDR or to the Commission no later than 180 days after the effective date of that subsection—or approximately 540 days after the date of enactment.

In a July 15, 2010 floor statement, Senator Lincoln addressed the inconsistencies between Sections 2(h)(5) and 4r(a)(2)(A) and emphasized that the provisions of these two sections “should be interpreted as complementary to one another to assure consistency between them. This is particularly true with respect to issues such as the effective dates of these reporting requirements * * *.”  13

As noted, new Section 2(h)(5) does not contain the same qualifying language found in Section 4r(a)(2)(A), which limits the swaps that must be reported to pre-enactment swaps whose terms have not expired as of the date of enactment. In the Commission's view, failure to limit the term “pre-enactment swaps” to “pre-enactment unexpired swaps” would require reporting of every swap that has ever been entered into. 14 There are obvious practical and operational difficulties in an interpretation that imposes reporting requirements on expired swaps: counterparties may not have kept thorough, complete—or indeed any—records of such transactions. Moreover, the argument can be made that a swap whose terms have expired is no longer a swap as defined in the Dodd-Frank Act. For these reasons, the Commission believes that the trades described in Section 2(h)(5) should be viewed as consistent with those described in Section 4r(a)(2); that is, limited to those pre-enactment trades whose terms had not expired at the time of enactment— i.e., July 21, 2010.

Rule 44.02(a) requires that the designated counterparty to a pre-enactment unexpired swap transaction  15 submit, with respect to such transaction, the following information to a registered SDR or to the Commission: (i) A copy of the transaction confirmation in electronic form, if available, or in written form if there is no electronic copy; and (ii) if available, the time the transaction was executed. In addition, Rule 44.02(b) provides that a counterparty to a pre-enactment unexpired swap transaction must report to the Commission on request any information relating to such transaction during the time that this interim final rule is in effect. The Commission expects that such information would vary depending upon the needs of the Commission and may include actual as well as summary trade data. Such summary data may include a description of a swap dealer's counterparties or the total number of pre-enactment swap transactions entered into by the dealer and some measure of the frequency and duration of those contracts. The Commission believes that this requirement will facilitate its ability to understand and evaluate the current market for swaps and may inform its analysis of other required rulemakings under the Dodd-Frank Act.

Section 4r(a)(3) of the CEA specifies the party obligated to report a swap transaction: either a swap dealer, a major swap participant, or a counterparty to the transactions. These provisions apply to reporting under the interim final rule. Specifically, Section 4r(a)(3) provides, with respect to a swap in which only one counterparty is a swap dealer or major swap participant, it is that entity's responsibility to report the swap. With respect to a swap in which one counterparty is a swap dealer and the other counterparty is a major swap participant, the swap dealer must report the swap; with respect to any other swap, the counterparties shall select one of them to report the swap. Rule 44.02(b) incorporates these provisions.

New CEA Section 4r(a)(2)(C) establishes that the reporting provisions of section 4r are effective immediately upon enactment of the Dodd-Frank Act, despite the fact that at this time (i) there are no registered SDRs to immediately accept the swap data; (ii) the Commission is not prepared to accept swap data; and (iii) the Commission has not adopted rules governing either the registration of swap dealers or major swap participants or the reporting and maintenance of such data and is not required to do so until 360 days after enactment of the Dodd-Frank Act. 16 In these circumstances, Section 4r should be read to require that the reporting obligation became effective on enactment of the Dodd-Frank Act and that counterparties who are subject to this obligation should, as of the date of enactment, retain all data relating to pre-enactment unexpired swaps until such time as reporting can be effected— e.g., when swap dealers and major swap participants, as well as the appropriate SDRs, have been registered, or when permanent regulations are enacted pursuant to Section 2(h)(5) of the CEA, whichever occurs first.

The pre-enactment swap transactions that must be reported pursuant to Section 4r of the CEA, as amended, and the new interim final rule (Part 44 of the Commission's Regulations) occurred prior to enactment of the Dodd-Frank Act. Accordingly, implicit in the reporting requirements established by Section 4r and Rule 44 is the obligation of each counterparty to such transactions to retain information and documents relating to the terms of the transaction. Rule 44.02 includes a Note to paragraphs (a)(1) and (2) advising counterparties to a pre-enactment unexpired swap that may be required to report such transaction to retain in its existing format all information and documents, to the extent and in such form as they presently exist, relating to the terms of the transaction. This information includes, but is not limited to: (i) Any information necessary to identify and value the transaction; (ii) the date and time of execution of the transaction; (iii) information relevant to the price of the transaction; (iv) whether the transaction was accepted for clearing by any clearing agency or derivatives clearing organization, and if so the identity of such agency or organization; (v) any modification(s) to the terms of the transaction; and (vi) the final confirmation of the transaction. The Commission believes that counterparties that may be required to report such transactions should retain such information in order to comply with the reporting requirements of Rule 44.02. The information identified above and in the Note is designed to encompass material information about pre-enactment unexpired swap transactions that may be the subject of a request by the Commission to report pursuant to the interim final rule, as well as rules subsequently adopted pursuant to new Section 2(h)(5) of the CEA, and that will assist the Commission in performing its oversight functions under the CEA.

The Note does not require any counterparty to a pre-enactment unexpired swap to create or retain new records with respect to transactions that occurred in the past. Permitting records to be retained in their existing format is designed to ensure that important information relating to the terms of pre-enactment unexpired swaps is preserved with minimal burden on the counterparties. Similarly, the Commission understands that information that the counterparty does not have prior to the effective date of the interim final rule cannot be reported.

The Administrative Procedure Act  17 (“APA”) generally requires an agency to publish notice of a proposed rulemaking in the Federal Register . 18 This requirement does not apply, however, when the agency “for good cause finds * * * that notice and public procedure are impracticable, unnecessary, or contrary to the public interest.”  19 Moreover, while the APA requires generally that an agency publish an adopted rule in the Federal Register 30 days before it becomes effective, this requirement does not apply if the agency finds good cause to make the rule effective sooner. 20 Section 729 of the Dodd-Frank Act amended the CEA to add new Section 4r, which in turn requires the Commission to adopt, within 90 days of enactment of the Dodd-Frank Act, an interim final rule providing for the reporting of swaps entered into before the date of enactment of the Dodd-Frank Act the terms of which were not expired as of that date. The Commission is adopting Part 44 to its Regulations in response to this mandate. In these circumstances, the Commission, for good cause, fines that notice and solicitation is impracticable, unnecessary or contrary to the public interest. This finding also satisfies the requirements of 5 U.S.C. 808(2), permitting the rule to become effective notwithstanding the requirement of 5 U.S.C. 801 (if a federal agency finds that notice and public comment are “impractical, unnecessary or contrary to the public interest,” a rule “shall take effect at such time as the federal agency promulgating the rule determines.”).

The Commission has determined that these proposed orders will not impose on swap counterparties any new reporting requirements that would be collections of information requiring the approval of the Office of Management and Budget under the Paperwork Reduction Act. 21 The reporting requirements associated with Section 723 of the Dodd-Frank Act will be adopted by the Commission, at which time the Commission will issue a notice and request comments on the reporting requirements and seek OMB approval as provided by 5 CFR 1320.8 and 1320.11.

Proposed Commission Regulation 44.02 imposes a recordkeeping requirement on swap counterparties that is considered to be a collection of information within the meaning of the Paperwork Reduction Act (“PRA”). 22 The Commission therefore is required to submit to the Office of Management and Budget (OMB) an information collection request for review and approval in accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.8 an d1320.11. The Commission will, by separate action, publish in the Federal Register a notice and request for comments on the paperwork burden associated with these recordkeeping requirements in accordance with 5 CFR 1320.8. If approved, this new collection of information will be mandatory.

Section 15 of the CEA requires the Commission to consider the costs and benefits of its action before issuing a new regulation or order under the Act. By its terms, Section 15(a) does not require the Commission to quantify the costs and benefits of its action or to determine whether the benefits of the action outweigh its costs. Rather, Section 15(a) requires the Commission simply to “consider the costs and benefits” of the subject rule or order. Section 15(a) further specifies that the costs and benefits of Commission regulations shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of the market for listed derivatives; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission may, in its discretion, give greater weight to any one of the five enumerated areas of concern and may, in its discretion, determine that notwithstanding its costs, a particular regulation is necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the CEA.

Title VII of the Dodd-Frank Act requires the Commission to undertake a number of rulemakings to implement the regulatory framework for swaps set forth in that Act, including the reporting of swap transactions. This interim final rule implements the Dodd-Frank Act by establishing reporting requirements for pre-enactment unexpired swaps as required by Section 729 of that Act and serving as notice to reporting entities of a present obligation to retain data related to such swaps for reporting at a future date. The rule will enable the Commission to obtain data on pre-enactment swaps and will also provide for the preservation of data on such swaps until the Commission issues permanent recordkeeping and reporting rules for all swaps. By making available transaction data on pre-enactment swaps, this action will enable the Commission to gain a better understanding of the swap market—including the size and scope of that market; this understanding will ultimately lead to a more robust and transparent environment for the market for swaps. Further, the Commission expects this rule to make available information that could inform the Commission's decision-making with respect to the rules it is required to implement under the Dodd-Frank Act.

The Note to Rule 44.02(a)(1) and (2) addresses the retention of records relating to swaps entered into before July 21, 2010, the terms of which had not expired as of that date. Although there are recordkeeping costs associated with retention of existing swap transaction information, the Commission does not believe those costs will be significant. The rule does not require market participants to modify the data they have for retention purposes, and the information that is required to be reported should be information that is already kept by swap counterparties in their normal course of business, and it may be reported in the format in which it is kept. Moreover, counterparties must report the time of execution only to the extent such information is available.

The permanent reporting rules that the Commission is required to adopt under new CEA Section 2(h)(5) also will apply to pre-enactment swaps. Accordingly, in adopting this interim final rule, the Commission has sought to limit the burden on market participants by not imposing substantial or potentially conflicting reporting requirements.

The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601 et seq., requires Federal agencies, in promulgating rules, to consider the impact of those rules on small entities. The term “rule” under the RFA is defined as “any rule for which the agency publishes a general notice of proposed rulemaking pursuant to Section 553(B) of this title, or any other law * * *.”  23 However, a general notice of proposed rulemaking under Section 553(b) does not apply “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules [issued] that notice and public procedure thereon are impracticable, unnecessary or contrary to the public interest.”  24 Congress in Section 4r(a)(2)(B) of the CEA directs the Commission to promulgate an interim final rule within 90 days of enactment of the Dodd-Frank Act to require the reporting of unexpired pre-enactment swaps. The Commission believes that the RFA does not apply to this interim final rule because “good cause” under 5 U.S.C. 553(b) has been established by specific order of Congress in the Dodd-Frank Act.

Pharmacia & Upjohn Co., a Division of Pfizer, Inc., 235 East 42d St., New York, NY 10017 filed a supplement to NADA 141-200 that provides for use of EAZI-BREED CIDR Progesterone Intravaginal Inserts and dinoprost tromethamine by injection for synchronization of estrus in lactating dairy cows. The NADA is approved as of July 22, 2010, and the regulations are amended in 21 CFR 529.1940 to reflect the approval.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(iii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(iii)), this supplemental approval qualifies for 3 years of marketing exclusivity beginning on the date of approval.

The agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

The City of Duluth, MN, who owns and operates this drawbridge, has requested a temporary deviation from the current operating regulations set forth in 33 CFR 117.661. The purpose of this request is to facilitate structural maintenance of the bridge superstructure. The bridge is normally required to open if at least 24 hours advance notice is provided during the scheduled maintenance period. Vessels that can pass under the bridge without an opening may do so at any time. The bridge has a horizontal clearance of 300 feet and a vertical clearance of 15 feet in the closed position. Mariners that require passage between the harbor and Lake Superior with an air draft greater than 15 feet may use the Superior Entrance Channel, Superior, Wisconsin at any time. Impact to masted navigation is mitigated by the close proximity of an alternate route and the reduced navigational needs in the harbor during the winter. The most updated and detailed marine information for this event, and all bridge operations, is found in the Local Notice to Mariners and Broadcast Notice to Mariners issued by the Coast Guard. From 6 a.m. on January 14, 2011 to 10 a.m. on March 14, 2011 the bridge need not open for any vessel. In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

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. Publishing an NPRM would be impracticable in this situation because immediate action is needed to protect the participants in the fireworks display, spectators, and mariners from the safety hazards associated with a fireworks display and low flying hot air balloons transiting over a confined waterway.

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 . This is because immediate action is needed to protect the participants in the fireworks display, spectators, and mariners from the safety hazards associated with a fireworks display and low flying hot air balloons transiting over a confined waterway.

On September 13, 2010, the Coast Guard received an Application for Approval of Marine Event for a fireworks display and a hot air balloon race on the Lower Mississippi River. This safety zone is needed to protect participants, spectators, and other mariners from the possible hazards associated with a fireworks show and hot air balloon race taking place on the Lower Mississippi River. The fallout zone extends into the navigable channel of the river.

The Coast Guard is establishing a temporary safety zone for the Mississippi River, extending from mile marker 363 to mile marker 365.5. Entry into this zone is prohibited unless specifically authorized by the Captain of the Port Lower Mississippi River or a designated representative.

The Captain of the Port may be contacted by telephone at (901) 521-4822. This rule will be enforced from 7:15 p.m. until 8:45 p.m., local time, on October 15, 2010 and from 4:15 p.m. until 6 p.m., local time, on October 16, 2010.

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 regulation will only be in effect for a short period of time on both days and notifications to the marine community will be made through broadcast notice to mariners. The impacts on routine navigation are expected to be minimal.

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 Lower Mississippi River between mile marker 363 and mile marker 365.5, effective from 7:15 p.m. to 8:45 p.m., local time, on October 15, 2010 and 4:15 p.m. to 6 p.m., local time, on October 16, 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 two hours on each day the event is occurring. In addition, the common vessel traffic in this area is limited almost entirely to recreational vessels and commercial towing vessels.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we 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 a fireworks display that is not expected to result in any significant adverse environmental impact as described in NEPA.

An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

Under Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and the Secretary of Agriculture (Secretaries) jointly implement the Federal Subsistence Management Program (Program). This Program grants a preference for subsistence uses of fish and wildlife resources on Federal public lands and waters in Alaska. The Secretaries first published regulations to carry out this Program in the Federal Register on May 29, 1992 (57 FR 22940). These regulations have subsequently been amended several times. Because this Program is a joint effort between Interior and Agriculture, these regulations are located in two titles of the Code of Federal Regulations (CFR): Title 36, “Parks, Forests, and Public Property,” and Title 50, “Wildlife and Fisheries,” at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. The regulations contain subparts as follows: Subpart A, General Provisions; subpart B, Program Structure; subpart C, Board Determinations; and subpart D, Subsistence Taking of Fish and Wildlife.

Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board is made up of:

• A Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture;

• The Alaska Regional Director, U.S. Fish and Wildlife Service;

• The Alaska Regional Director, U.S. National Park Service;

• The Alaska State Director, U.S. Bureau of Land Management;

• The Alaska Regional Director, U.S. Bureau of Indian Affairs; and

• The Alaska Regional Forester, U.S. Forest Service.

Through the Board, these agencies participate in the development of regulations for subparts A, B, and C, which set forth the basic program, and the subpart D regulations, which, among other things, set forth specific harvest seasons and limits.

In administration of the Program, Alaska is divided into 10 subsistence resource regions, each of which is represented by a Regional Advisory Council. The Regional Advisory Councils provide a forum for rural residents with personal knowledge of local conditions and resources to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Regional Advisory Council members represent diverse geographical, cultural, and user interests within each region.

Members of the regional councils, agency representatives, and the public expressed concern to the Federal Subsistence Board that 36 CFR 242.19 and 50 CFR 100.19, respectively, needed to be revised in a manner that provided more clarity to the Board's process of accepting and addressing special action requests. Special actions are actions that the Board takes to modify the take of fish and wildlife regulations on public lands, outside of the regulatory proposal period, to ensure the continued viability of a fish or wildlife population or for other reasons. These actions may include closing, opening, or adjusting the seasons; modifying the harvest limits; or modifying the methods and means of harvest for subsistence uses of fish and wildlife.

The problem with the lack of clarity in the regulations became particularly apparent during oral argument in the case of Ninilchik Traditional Council v. Fleagle, when the presiding judge struggled to interpret the procedural mechanisms described in the regulation and criticized it for being unclear. More recently, we recognized the need to modify § __.19 to accommodate the programmatic shift to a biennial regulatory cycle.

The Secretaries published a proposed rule on October 14, 2009 (74 FR 52712), to amend subpart B, §§ __.10, __.18, and __.19 of 36 CFR 242 and 50 CFR 100.

These modifications will:

(1) Improve clarity with respect to the Board's process of accepting and addressing special action requests;

(2) Update public notice requirements and bring them into line with the practices of the digital age;

(3) Bring clarity to the role of the regional councils with respect to special action requests; and

(4) Accommodate the biennial regulatory cycle, which was implemented in 2008 (73 FR 35726; June 24, 2008).

These regulatory revisions will result in no direct change to subsistence uses or fish and wildlife populations, but clarify the process by which special action requests are accepted or rejected by the Board. The proposed rule opened a comment period, which closed on January 12, 2010. The Departments advertised the proposed rule by mail, radio, and newspaper.

The Secretaries, through the Board, held a public meeting on January 12, 2010, to receive comments from Regional Advisory Council Chairs, or designated representatives, and the public. The Board met again on April 13, 2010, to review and formulate a recommendation to the Secretaries.

During the public comment period, the Secretaries received two comments, one from a State advisory commission and a second from a private organization. At the public meeting on January 12, 2010, the Secretaries, through the Board, received four comments, two from two separate sporting organizations, one from a Native organization, and one from the State. In addition, the Regional Advisory Council Chairs were provided the opportunity to comment to the Board. The major comments from all sources are addressed below:

Comment: The proposed rule wrongly expands the authority of the Board under ANILCA into regulating nonsubsistence uses on Federal public lands thereby infringing on sovereign State authority.

Response: The Secretaries hold the position that they have the authority to open, close, restrict, or modify nonsubsistence uses, as needed, in the taking of fish and wildlife on Federal public lands. Due to possible misinterpretation, the Secretaries decided to remove the phrase “* * * or otherwise modify the requirements regarding the taking of fish and wildlife on public lands for nonsubsistence uses.” from the language presented in the proposed rule.

Comment: The proposed rule needs to address specific conditions for reopening an area for nonsubsistence use.

Response: Under direction from the Secretaries, the Board adopted a policy on closures to hunting, trapping and fishing on Federal public lands and waters in Alaska on August 29, 2007. This policy addresses in detail the removal of closures on Federal public lands and waters and was approved by the Secretaries prior to being adopted by the Board.

Comment: The proposed rule does not provide deference to the Regional Advisory Councils in consideration of special actions.

Response: The Secretaries address the Board's deference to the Regional Advisory Councils in 36 CFR 242.10(e) and 50 CFR 100.10(e), “Federal Subsistence Board; “Relationship to Regional Councils”. It is further addressed in the Board's closure policy of August 29, 2007.

Comment: The proposed rule does not clarify the State's role in regard to Federal determinations that affect the State's management responsibilities for fish and wildlife when implementing special actions.

Response: The relationship between the Board and the State is defined in 36 CFR 242.14 and 50 CFR 100.14, “Relationship to State procedures and regulations”. In addition, the Memorandum of Understanding signed on December 5, 2008, between the Board and the State established guidelines to coordinate the management of subsistence uses of fish and wildlife resources on Federal public lands and waters in Alaska.

These final regulations reflect Secretarial review and consideration of the Federal Subsistence Board recommendation and Regional Advisory Council and public comments. The public received extensive opportunity to review and comment on all changes.

Analysis and justification for the action taken are available for review at the Office of Subsistence Management, 1011 East Tudor Road, Mail Stop 121, Anchorage, Alaska 99503, or on the Office of Subsistence Management Web site ( http://alaska.fws.gov/asm/index.cfml ).

The Secretaries have provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act requirements, including publishing a proposed rule notice in the Federal Register , participation in multiple Regional Council meetings, additional public review and comment on proposed regulatory changes, and opportunity for additional public comment during the Board meeting prior to their recommendation to the Secretaries.

Therefore, the Secretaries finds good cause pursuant to 5 U.S.C. 553(d)(3) to make this rule effective upon the date set forth in DATES to ensure continued operation of the subsistence program.

A Draft Environmental Impact Statement (DEIS) for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. That document described the major issues associated with Federal subsistence management as identified through public meetings, written comments, and staff analyses and examined the environmental consequences of four alternatives. Proposed regulations (subparts A, B, and C) that would implement the preferred alternative were included in the DEIS as an appendix. The DEIS and the proposed administrative regulations presented a framework for a regulatory cycle regarding subsistence hunting and fishing regulations (subpart D). The Final Environmental Impact Statement (FEIS) was published on February 28, 1992.

Based on the public comments received, the analysis contained in the FEIS, and the recommendations of the Federal Subsistence Board and the Department of the Interior's Subsistence Policy Group, the Secretary of the Interior, with the concurrence of the Secretary of Agriculture, through the U.S. Department of Agriculture-Forest Service, implemented Alternative IV as identified in the DEIS and FEIS (Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS and the selected alternative in the FEIS defined the administrative framework of a regulatory cycle for subsistence hunting and fishing regulations. The final rule for subsistence management regulations for public lands in Alaska, subparts A, B, and C, implemented the Federal Subsistence Management Program and included a framework for a regulatory cycle for the subsistence taking of wildlife and fish. The following Federal Register documents pertain to this rulemaking:

An environmental assessment was prepared in 1997 on the expansion of Federal jurisdiction over fisheries and is available from the office listed under FOR FURTHER INFORMATION CONTACT . The Secretary of the Interior with the concurrence of the Secretary of Agriculture determined that the expansion of Federal jurisdiction did not constitute a major Federal action significantly affecting the human environment and, therefore, signed a Finding of No Significant Impact.

An ANILCA Section 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program. The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. The final section 810 analysis determination appeared in the April 6, 1992, ROD and concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.

During the subsequent environmental assessment process for extending fisheries jurisdiction, an evaluation of the effects of this rule was conducted in accordance with section 810. That evaluation also supported the Secretaries' determination that the rule will not reach the “may significantly restrict” threshold that would require notice and hearings under ANILCA section 810(a).

An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. This rule does not contain any new collections of information that require OMB approval. OMB has reviewed and approved the following collections of information associated with the subsistence regulations at 36 CFR 242 and 50 CFR 100: Subsistence hunting and fishing applications, permits, and reports, Federal Subsistence Regional Advisory Council Membership Application/Nomination and Interview Forms (OMB Control No. 1018-0075 expires January 31, 2013).

The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under Executive Order 12866. OMB bases its determination upon the following four criteria:

(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

(b) Whether the rule will create inconsistencies with other agencies' actions.

(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

(d) Whether the rule raises novel legal or policy issues.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. In general, the resources to be harvested under this rule are already being harvested and consumed by the local harvester and do not result in an additional dollar benefit to the economy. However, we estimate that two million pounds of meat are harvested by subsistence users annually and, if given an estimated dollar value of $3.00 per pound, this amount would equate to about $6 million in food value statewide. Based upon the amounts and values cited above, the Departments certify that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq. ), this rule is not a major rule. It does not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and 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.

Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.

The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies and there is no cost imposed on any State or local entities or tribal governments.

The Secretaries have determined that these regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.

The Alaska National Interest Lands Conservation Act does not specifically provide rights to tribes for the subsistence taking of wildlife, fish, and shellfish. However, the Secretaries have elected to provide tribes an opportunity to consult on this rule. The Secretaries, through the Board, provided a variety of opportunities for consultation through: proposing changes to the existing rule; commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Advisory Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process.

This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.

Theo Matuskowitz drafted these regulations under the guidance of Peter J. Probasco of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by

• Daniel Sharp, Alaska State Office, Bureau of Land Management;

• Sandy Rabinowitch and Nancy Swanton, Alaska Regional Office, National Park Service;

• Dr. Glenn Chen and Patricia Petrivelli, Alaska Regional Office, Bureau of Indian Affairs;

• Jerry Berg and Carl Jack, Alaska Regional Office, U.S. Fish and Wildlife Service; and

• Steve Kessler, Alaska Regional Office, U.S. Forest Service.

The contents of this preamble are:

On August 3, 2010, the Agency proposed to amend the date by which certain facilities must prepare or amend their Spill Prevention, Control, and Countermeasure (SPCC) Plans (or “Plan”), and implement those Plans (75 FR 45572). This action extends the compliance date an additional year for certain facilities, with a new compliance date of November 10, 2011, to allow time for those affected in the regulated community to understand the revisions to the SPCC rule finalized in December 2008 and November 2009 and amend or prepare and implement their SPCC Plans. However, EPA is not extending the compliance date for drilling, production or workover facilities that are offshore or that have an offshore component, or for onshore facilities required to have and submit Facility Response Plans (FRPs).

Additionally, the Agency is delaying the compliance date by which the owner or operator of a facility must address milk and milk product containers, associated piping and appurtenances that are constructed according to the current applicable 3-A Sanitary Standards, and subject to the current applicable Grade “A” Pasteurized Milk Ordinance (PMO) or a State dairy regulatory requirement equivalent to the current applicable PMO. The date by which the owner or operator of a facility must comply with SPCC requirements for these milk and milk product containers is delayed one year from the effective date of a final rule specifically addressing these milk and milk product containers, associated piping and appurtenances, or as specified by a rule that otherwise establishes a new compliance date for these facilities. Both the extension and delay of the compliance date provide time for certain facilities to undertake the actions necessary to prepare or amend their SPCC Plans, as well as implement them.

In the table below, EPA is providing a list of potentially affected entities. However, this action may affect other entities not listed below. The Agency's goal is to provide a guide for readers to consider regarding entities that potentially could be affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section titled FOR FURTHER INFORMATION CONTACT .

33 U.S.C. 1251 et seq.; 33 U.S.C.2720; E.O. 12777 (October 18, 1991), 3 CFR, 1991 Comp., p.351.

On July 17, 2002, the Agency published a final rule that amended the SPCC regulation (67 FR 47042). The rule became effective on August 16, 2002. The final rule included compliance dates in § 112.3 for preparing, amending, and implementing SPCC Plans. The dates for complying with amendments to the SPCC regulations have been amended a number of times: on January 9, 2003 (68 FR 1348), on April 17, 2003 (68 FR 18890), on August 11, 2004 (69 FR 48794), on February 17, 2006 (71 FR 8462), on May 16, 2007 (72 FR 27444), and again on June 19, 2009 (74 FR 29136). These extensions alleviated the need for individual extension requests and provided additional time for the regulated community to, among other things: understand the July 2002 SPCC amendments and the implications of the litigation ( see 69 FR 29728, May 25, 2004 and 73 FR 71941, November 26, 2008); allow those potentially affected in the regulated community an opportunity to make changes to their facilities and to their SPCC Plans necessary to comply with amendments to the SPCC rule as finalized in December 2006, December 2008, and November 2009; and to understand the material presented in the SPCC Guidance for Regional Inspectors before preparing or amending their SPCC Plans. All of these changes and amendments were promulgated to provide increased clarity, to tailor the requirements to particular industry sectors, and to streamline certain requirements for those facility owners or operators subject to the rule. The current date under § 112.3(a), (b) and (c) by which owners/operators of facilities must prepare or amend their SPCC Plans, and implement those Plans, is November 10, 2010.

In accordance with the January 20, 2009 White House memorandum entitled, “Regulatory Review,” and the memorandum from the Office of Management and Budget entitled, “Implementation of Memorandum Concerning Regulatory Review” (M-09-08, January 21, 2009) (OMB memorandum), the effective date of the December 2008 rulemaking was delayed until April 4, 2009 (74 FR 5900, February 3, 2009) and then until January 14, 2010 (74 FR 14736, April 1, 2009). The Agency took this action to ensure that the rule reflected proper consideration of all relevant facts. In the February 3, 2009 notice, EPA requested public comment on the extension of the effective date and its duration, and on the regulatory amendments contained in the December 2008 final rule. Upon reviewing the record for the amendments and the additional comments, EPA promulgated further amendments to the SPCC rule on November 13, 2009 (74 FR 58784), making limited changes to the December 2008 amendments. The effective date for both the December 5, 2008 and the November 13, 2009 final rule is January 14, 2010, with a compliance date of November 10, 2010. Because of the uncertainty that surrounded EPA's review of the final amendments to the December 5, 2008 rule, the delay of the effective date of that rule and publication of final rule amendments on November 13, 2009, the Agency is extending the compliance date for certain facilities.

On January 15, 2009, EPA proposed to exempt from the SPCC requirements milk containers, associated piping and appurtenances provided they are constructed according to current applicable 3-A Sanitary Standards, and are subject to the current applicable PMO or a State dairy regulatory requirement equivalent to the current applicable PMO (74 FR 2461), and that the capacity of these milk containers would not be included in a facility's total oil storage capacity calculation. The Agency requested comment on an exemption for milk product containers and their associated piping and appurtenances from the SPCC rule provided they are also constructed in accordance with the current applicable 3-A Sanitary Standards, and are subject to the current applicable Grade “A” PMO sanitation requirements or a State dairy regulatory equivalent to the current applicable PMO. The Agency also requested comment on how to address milk storage containers (including totes) that may not be constructed to 3-A Sanitary Standards under the SPCC rule and whether they should also be exempted from the SPCC requirements, provided they are subject to the current applicable Grade “A” PMO or a State dairy regulatory requirement equivalent to the current applicable PMO. Finally, the Agency also requested comment on alternative approaches to address milk and milk product containers, associated piping and appurtenances under the SPCC rule. Today's action delays the compliance date by which facilities must address milk and milk product containers, associated piping and appurtenances that may be impacted by a final rule exempting these containers.

Under the current provisions in § 112.3(a), the owner or operator of a facility that was in operation on or before August 16, 2002 must maintain and implement the facility's SPCC Plan, make any necessary revisions pursuant to the 2002, 2006, 2008 and 2009 amendments to the Plan, and fully implement the amended Plan by November 10, 2010; the owner or operator of a facility that came into operation after August 16, 2002, but before November 10, 2010, must prepare and fully implement an SPCC Plan on or before November 10, 2010. Under the current provisions in § 112.3(b), the owner or operator of a facility (excluding oil production facilities) that becomes operational after November 10, 2010 must prepare and implement an SPCC Plan before beginning operations; the owner or operator of an oil production facility that becomes operational after November 10, 2010 must prepare and implement a Plan within six months after beginning operations. In addition, the current provision in § 112.3(c) requires the owners and operators of onshore and offshore mobile or portable facilities to prepare, implement, and maintain an SPCC Plan, and to amend it, if necessary to ensure compliance with this part, on or before November 10, 2010. The owner or operator of any onshore or offshore mobile or portable facility that becomes operational after November 10, 2010, must prepare and implement a Plan before beginning operations.

This rule amends the dates in § 112.3(a), (b) and (c) by which the owners/operators of facilities (except drilling, production or workover facilities that are offshore or that have an offshore component, and all onshore facilities required to have and submit FRPs  1 ) must prepare or amend their SPCC Plans, and implem ent those Plans, to November 10, 2011. This action extends the date by one year from the current SPCC compliance date of November 10, 2010. This extension of the compliance date does not apply, however, to drilling, production or workover facilities that are completely offshore or that have both onshore and offshore components ( e.g., an oil production facility with offshore wellheads connected to an onshore tank battery by submerged flowlines). For offshore drilling, production or workover facilities, the Agency is concerned about the need to have the most up-to-date SPCC Plans due to the unusual combination of characteristics of these facilities: continuous flow of oil at the facility, potential discharges being limited only by the capacity and pressure of the underground reservoir, and discharges that would have immediate and direct impact on water.

For onshore facilities, the Agency also is concerned that extending the existing compliance date for facilities with large oil storage capacities could increase the potential to cause substantial harm if a discharge were to occur. Onshore facilities with large oil storage capacities have the potential to cause substantial harm as identified under the FRP regulation (40 CFR Part 112.20 and 112.21). FRP facilities are those with storage capacities of 1 million gallons or more that could cause substantial harm  2 or those with storage capacities at or above 42,000 gallons and that transfer oil to or from a vessel over water. The Agency believes that FRP facilities should also have the most up-to-date SPCC Plans due to the potential to cause substantial harm, if a discharge were to occur. (Note: The Agency has not changed any compliance dates with respect to the FRP regulations.) Therefore, EPA is not extending the compliance date for drilling, production or workover facilities that are offshore or that have an offshore component, or all onshore facilities required to have and submit FRPs, due to the threats these facilities pose of significant oil spills to navigable waters or adjoining shorelines.

The Agency is also delaying the compliance date by which the owner or operator of a facility must address milk and milk product containers, associated piping and appurtenances. The delay of the compliance date affects facilities with milk and milk product containers that are constructed according to the current applicable 3-A Sanitary Standards, and subject to the current applicable Grade “A” PMO or a State dairy regulatory requirement equivalent to the current applicable PMO. The date by which a facility owner or operators must comply with SPCC requirements for these milk and milk product containers is delayed by one year from the effective date of a final rule specifically addressing these milk and milk product containers, associated piping and appurtenances, or as specified by a rule that otherwise establishes a compliance date for these facilities. The Agency will establish the compliance date and publish it in the Federal Register as part of any final action on the proposed exemption (74 FR 2461, January 15, 2009). The delay provides the owner or operator of these facilities the opportunity to fully understand any regulatory amendments that may be finalized.

This rule is effective immediately upon publication in the Federal Register . Section 553(d) of the Administrative Procedures Act requires 30 days notice before the effective date of a final rule. However, section 553(d)(1) allows an exception to the 30-day notice where a rule relieves a restriction. Because this final rule relieves a restriction, the Agency invokes section 553(d)(1) to allow an immediate effective date.

Today's rule revises the regulatory text in the proposed rule in response to the comments received. The Agency is making changes to the regulatory text in § 112.3 to clarify how the extension and the delay of the compliance date applies for different facilities.

This rule extends for most facilities the dates in § 112.3(a), (b) and (c) by which the owner or operator must prepare or amend and implement an SPCC Plan. Exclusions to this compliance date extension are described below. 3 Today's rule amends and combines § 112.3(a) with §§ 112.3(b)(1) and (c) in the new paragraph § 112.3(a)(1) to:

• Amend the compliance date for a facility, including a mobile or portable facility, in operation on or before August 16, 2002 to require the owner or operator to make any necessary amendments to an SPCC Plan and fully implement the amended Plan by November 10, 2011. 4

• Amend the compliance date for a facility, including a mobile or portable facility, which came into operation after August 16, 2002, but before November 10, 2011, to require the owner or operator to prepare and fully implement an SPCC Plan on or before November 10, 2011.

• Amend the compliance date for a facility, including a mobile or portable facility, (except an oil production facility  5 ) which becomes operational after November 10, 2011 to require the owner or operator to prepare and implement an SPCC Plan before beginning operations.

• Incorporate the language under the current § 112.3(c) for mobile or portable facilities (such as an onshore drilling or workover rig, or a portable fueling facility) to amend the compliance date for these facilities to November 10, 2011 and maintain the language that allows mobile or portable facilities to prepare a general Plan.

An extension of the compliance date for these facilities is appropriate because it provides the owners or operators of SPCC-regulated facilities the opportunity to fully understand the regulatory amendments offered by revisions to the SPCC rule promulgated on December 5, 2008 (73 FR 74236) and November 13, 2009 (74 FR 58784). Given the delay in the effective date for the December 2008 rule amendment, and the uncertainty that surrounded the final amendments because of this delay, this extension allows potentially affected facilities an additional year beyond the current compliance date of November 10, 2010 to make any changes to their facilities and SPCC Plans to comply with the revised SPCC requirements. Considering that the changes in the final November 2009 amendments were very limited, and that most of the December 2008 amendments offered compliance options and regulatory burden relief, a timeframe for this extension of one year is appropriate. A one-year period from the current compliance date provides sufficient time to understand and implement the amendments to the SPCC rule.

The Agency is not extending the compliance date for drilling, production or workover facilities that are offshore or that have an offshore component, or for onshore facilities required to have and submit FRPs. The Agency is particularly concerned about the potential for immediate environmental impacts resulting from oil spills to navigable waters or adjoining shorelines posed by these facilities. All of these facilities have potentially significant quantities of oil that could be discharged to navigable waters or adjoining shorelines. Offshore drilling, production and workover facilities (and those with an offshore component) have a constant flow of oil associated with them and discharges could be in amounts that far exceed the oil storage capacity of the facility. Based on the recent experience with the Gulf of Mexico oil spill, the Agency is concerned that any potential oil discharge may be limited only by the capacity and pressure of the underground petroleum reservoir. The Agency's concern regarding these facilities is reflected in the fact that they have a greater number of requirements under the SPCC rule because of their location over navigable waters or adjoining shorelines (40 CFR Part 112.11). In addition to those facilities completely offshore, the Agency has identified many onshore facilities with offshore components, as in the case of over-water production platforms. While these facilities may have their tank batteries located onshore, their wellhead and portions of the flowlines are below the surface of the water. Offshore components include, but are not limited to, flow lines, gathering lines, wellheads, shut in valves, pressure control and sensing devices, cathodic protection devices and related piping and appurtenances. Because the Agency is equally concerned with the potential for immediate environmental impacts resulting from oil spills from a facility's offshore components, it is also excluding these facilities from any extension to the compliance date. The Agency is also excluding all onshore FRP facilities from the extension because of their large oil storage capacities and their potential to cause substantial harm in the event of a discharge as identified under the FRP regulation (40 CFR 112.20). FRP facilities are those with storage capacities of 1 million gallons or more that could cause substantial harm, or those with storage capacities at or above 42,000 gallons and that transfer oil to or from a vessel over water.

Today's rule adds a new paragraph § 112.3(a)(2) to maintain the existing compliance date for this subset of facilities, and combines it with the § 112.3(c) provision to indicate that the existing compliance date also applies to mobile or portable facilities within this subset:

• Maintains the existing compliance date for A drilling, production or workover facility, including a mobile or portable facility, that is offshore or that has an offshore component; or an onshore facility required to have and submit an FRP, that was in operation on or before August 16, 2002, that requires the owner or operator to make any necessary amendments to an SPCC Plan and fully implement the amended Plan by November 10, 2010.

• Maintains the existing compliance date for a drilling, production or workover facility, including a mobile or portable facility, that is offshore or that has an offshore component, or an onshore facility required to have and submit an FRP, that came into operation after August 16, 2002, but before November 10, 2010, that requires the owner or operator to prepare and fully implement an SPCC Plan on or before November 10, 2010.

• Maintains the existing compliance date for a facility (except an oil production facility  6 ) that is either: A drilling, production or workover facility, including a mobile or portable facility, that is offshore or that has an offshore component, or an onshore facility required to have and submit an FRP, that becomes operational after November 10, 2010, that requires the owner or operator to prepare and implement an SPCC Plan before beginning operations.

• Incorporates language under the current § 112.3(c) provision to maintain the existing compliance date for mobile or portable facilities that fall within this subset of facilities (such as a barge mounted offshore drilling or workover rig), and maintains the language that allows mobile or portable facilities to prepare a general Plan.

The Agency is amending § 112.3(b)(2) to distinguish the two separate compliance dates that would apply to oil production facilities that become operational after the compliance dates. The Agency is also moving this provision to § 112.3(b). The new § 112.3(b) amendments:

• Maintain the existing compliance date for any oil production facility that is offshore or that has an offshore component, or any onshore oil production facility required to have and submit an FRP, that becomes operational after November 10, 2010, and could reasonably be expected to have a discharge as described in § 112.1(b), that requires the owner or operator to prepare and implement a Plan within six months after beginning operations.

• Amend the compliance date for any onshore oil production facility ( i.e., one that does not have an offshore component and is not required to have and submit an FRP) that becomes operational after November 10, 2011, and could reasonably be expected to have a discharge as described in § 112.1(b), that requires the owner or operator to prepare and implement a Plan within six months after beginning operations.

The Agency is delaying the compliance date by which the owner or operator of a facility must address milk and milk product containers, associated piping and appurtenances that are constructed according to the current applicable 3-A Sanitary Standards, and subject to the current applicable Grade “A” PMO or a State dairy regulatory requirement equivalent to the current applicable PMO. The Agency is taking this action for facilities that would be affected by any final determination on the proposed rule to exempt these containers from the SPCC requirements (74 FR 2461, January 15, 2009). The date by which a facility owner or operator must comply with SPCC requirements for these milk and milk product containers is delayed by one year from the effective date of a final rule specifically addressing these milk and milk product containers, associated piping and appurtenances, or as specified by a rule that otherwise establishes a new compliance date for these facilities. The Agency will establish the new compliance date and publish it in the Federal Register as part of any final action on the proposed exemption.

The delay for these facilities provides the owner or operator the opportunity to fully understand any new regulatory amendments for milk and milk product containers, associated piping and appurtenances. Today's rule amends § 112.3(c) to:

The Agency solicited comments on the proposed compliance date extension by which owners and operators would be required to prepare, amend, and implement SPCC Plans in accordance with the amendments to the SPCC rule. The Agency also discussed an alternative of a shorter compliance date extension, such as either six or nine months (either May 10, 2011 or August 10, 2011).

In addition, the Agency solicited comments on the proposed exceptions to the compliance date extension: Requiring drilling, production or workover facilities that are offshore or that have an offshore component, or onshore facilities that are required to have and submit an FRP, to comply by the current compliance date of November 10, 2010.

Furthermore, the Agency also solicited comments on the proposed delay of the compliance date by which owners and operators of facilities that have milk containers, associated piping and appurtenances would be required to prepare, amend, and implement SPCC Plans in accordance with amendments to the SPCC rule.

The Agency received 34 comments on the proposed rule. The discussion below summarizes and responds to the major comments received. A more complete response to comments can be found in the docket for this rulemaking, EPA-HQ-OPA-2009-0880.

Comments that support an extension of the compliance date. The majority of comments supported the Agency's proposal to extend the compliance dates in Sec. 112.3 for certain facilities. They agreed with the Agency that an extension of the compliance date was necessary to allow owners and operators sufficient time to amend and implement their SPCC Plans. Of those that supported an extension of the compliance dates, some comments agreed with extending the compliance dates as proposed. Other comments supported an extension, but did not agree with the length of the extension proposed by the Agency, arguing for additional time. These requests cited the extent of modifications necessary at facilities; the need to obtain the services of Professional Engineers (PE); the time for EPA and other stakeholders to conduct outreach; the need for EPA to complete further regulatory clarifications on the definition of oil; finalize clarification on jurisdictional issues between EPA and the Department of Transportation (DOT); and revise the SPCC Guidance for Regional Inspectors to help stakeholders better understand the regulatory requirements and the December 2008 and November 2009 amendments. Some comments indicated that the alternative approach to consider a shorter compliance date extension, such as either six or nine months, would not be appropriate.

Comment relating to eligibility of the compliance date. One comment raised concerns with a footnote in the preamble of the proposed rule that stated, “[t]o be eligible for the compliance extension, owners or operators of facilities in operation before August 16, 2002 must continue to maintain their existing SPCC Plans.”

Comments pertaining to the exceptions to the compliance date extension. Several comments supported or took no position on the exception to the compliance date for drilling, production or workover facilities that are offshore or that have an offshore component, or onshore facilities required to have and submit FRPs. One comment, however, opposed the exception for onshore facilities required to have and submit FRPs, arguing that these facilities have always been included in compliance date extensions in the past, and that this time should be no exception. The comment further indicated that FRP-regulated facilities have EPA-approved FRPs that are in place to address the Agency's concern that these facilities have the potential to cause substantial harm if a discharge were to occur. Finally, FRP facilities are large and complex operations that require additional time to come into compliance and therefore these facilities should be eligible for the one-year extension.

Comments that support a delay of the compliance date for facilities with milk containers that meet specific requirements. Several comments expressed support for delaying the compliance date for facilities with milk containers, associated piping and appurtenances until one year after EPA finalizes a rule for these facilities. Two comments requested that EPA clarify that the extension and future exemption will apply to milk and milk products, including but not limited to such products as cheese, cream, yogurt and ice cream mix. A number of comments indicated that the two different compliance deadlines for dairy facilities based on their start date are unnecessarily confusing and complex. The comments specifically cited confusion with how the compliance date applies based on when a facility begins operating and whether they must maintain and amend an SPCC Plan or prepare a new SPCC Plan. The organizations requested that EPA extend the compliance date to one year after finalization of the bulk milk storage exemption to all facilities, regardless of start date. Additionally, comments requested clarification on how the compliance date applies to facilities with both petroleum and bulk milk storage. Comments also requested that EPA take final action on the proposal to exempt milk storage containers, associated piping, and appurtenances from the SPCC rule.

Response to comments that support an extension of the compliance date. EPA agrees with the comments that an extension of the compliance date for certain facilities is necessary because it provides the owner or operator of a facility the opportunity to fully understand the regulatory amendments offered by the revisions to the SPCC rule promulgated on December 5, 2008 (73 FR 74236) and November 13, 2009 (74 FR 58784). Furthermore, this extension will allow the regulated community time to understand all of the regulatory amendments offered by revisions to the SPCC rule promulgated since July 2002. Therefore, the Agency is promulgating a one-year extension of the compliance dates for certain facilities, but is excluding from the extension drilling, production and workover facilities that are offshore or that have an offshore component, or onshore facilities that are required to have and submit an FRP. EPA believes that a one-year extension of the compliance dates to November 10, 2011 is appropriate for certain facilities for a number of reasons, particularly since the owners and operators of SPCC-regulated facilities have had at least a year to understand the final SPCC amendments.

The SPCC compliance dates have been delayed since the promulgation of amendments in July 2002; during this time, new facilities (those that have become operational after the effective date of the July 2002 amendments) have not yet been required to prepare and implement an SPCC Plan. Therefore, EPA believes that any compliance date beyond the extension finalized in this action would be inappropriate and not environmentally protective.

Facilities in operation prior to the effective date of the July 2002 amendments are required to maintain their SPCC Plans and have had ample time to schedule and conduct facility modifications (as necessary) to comply with these amendments. Additionally, because the SPCC amendments published in December 2008 and November 2009 primarily streamlined the rule requirements, facilities should not require extensive modifications in order to comply with these regulatory amendments.

Since promulgating the July 2002 amendments to the SPCC rule, the Agency has and will continue to provide outreach and compliance assistance to SPCC regulated facilities so that a compliance extension for certain facilities to November 10, 2011 should be sufficient. The Agency does not believe ongoing outreach activities; updates to existing guidance documents; further regulatory clarifications; or development of new guidance or jurisdictional clarifications between EPA and other federal agencies are a basis for further extending the compliance date. EPA intends to continue to conduct outreach and provide guidance and clarification on the SPCC requirements (as appropriate), but does not believe that facilities should wait to amend or prepare and implement their SPCC Plans because these are ongoing activities.

EPA also does not agree that the extension or additional time for compliance should be provided to revise the SPCC Guidance for Regional Inspectors. While EPA plans to revise the guidance document, most of the modifications to the SPCC regulation are already explained and discussed in the preamble to the final rules. Thus, there are very few necessary revisions to the guidance to address any new regulatory burden, as the past several actions on the SPCC rule were for the purposes of regulatory streamlining. 7 EPA did not propose an extension to the compliance date with a rationale based on completion of the guidance for the reasons stated above.

The Agency did not receive any comments supporting a shorter extension to the compliance date, and thus, has decided not to promulgate an amended compliance date for certain facilities to either of the alternative shorter time periods offered for comment (either May 10, 2011 or August 10, 2011). The Agency recognizes that the owner or operator of a regulated facility needs adequate time to comply with the SPCC rule following amendments to the regulation. EPA recognizes that any timeframe shorter than one year from the current compliance date may not allow sufficient time for those facilities for which EPA is granting a compliance date extension to fully understand and comply with all of the recently promulgated SPCC amendments or hire Professional Engineers. A one year timeframe also accommodates seasonal considerations for various industries. Therefore, the Agency is promulgating a one-year compliance date extension to allow certain facilities time to prepare, amend, and implement an SPCC Plan following recent amendments to the SPCC rule.

Response to the comment relating to eligibility of the compliance date. EPA does not agree with the comment that suggests that footnote #3 in the proposed rule that clarifies how the compliance date extension applies to facilities in operation prior to August 16, 2002 is incorrect. EPA established initial compliance dates in the July 2002 final rule (67 FR 47042) and clarified in the preamble how the compliance dates apply to facilities in operation prior to the effective date of the rule ( see 67 FR 47082, July 17, 2002). The examples provided in the July 2002 preamble were consistent with and illustrated the accompanying regulatory text that established the initial compliance dates. The Agency has indicated in each Federal Register notice announcing the subsequent extension to the compliance dates  8 that facilities in operation prior to August 16, 2002 must maintain an SPCC Plan. If a facility has no SPCC Plan to maintain, then the date by which the facility has to amend the Plan to comply with the SPCC regulatory revisions promulgated since 2002 does not apply and the owner or operator is not eligible for the extension. The footnote discussed here is wholly consistent with the Agency's preamble examples in the July 2002 final rule and the regulatory text extending compliance dates since 2002.

Response to the comments pertaining to the exceptions to the compliance date extension. EPA does not agree that onshore facilities that are required to have and submit FRPs should be eligible for the one year extension. The Agency is concerned with the threat for immediate environmental impacts resulting from oil spills from these facilities because of their large oil storage capacities and their potential to cause substantial harm in the event of a discharge as identified under the FRP regulation (40 CFR 112.20). The comment correctly indicates that many of these facilities are implementing FRPs that are approved by the Agency; however, these plans serve to identify response capability in the event of a discharge to navigable waters or adjoining shorelines and do not specifically include requirements that serve to prevent these discharges. For example, implementation of a tank integrity testing program and brittle fracture evaluations are SPCC requirements and not FRP requirements. Many of the SPCC requirements promulgated since July 2002 serve to enhance prevention of oil spills and EPA does not believe it is environmentally protective to extend the date by which these requirements are addressed and implemented at FRP-regulated facilities.

The Agency recognizes that some facilities excluded from the extension of the compliance date ( i.e., drilling, production or workover facilities that are offshore or that have an offshore component, or an onshore facility that is required to have and submit an FRP) may require additional time to amend or prepare their SPCC Plans as a result of either non-availability of qualified personnel, or delays in construction or equipment delivery beyond the control and without the fault of the owner or operator. If so, the owner or operator of the facility may submit a written request for additional time to amend or prepare an SPCC Plan to the Regional Administrator in accordance with § 112.3(f).

Response to comments that support a delay of the compliance date for facilities with milk containers that meet specific requirements. EPA agrees with comments that supported a delay of the compliance date by which facilities must address milk containers, associated piping and appurtenances that are constructed according to the current applicable 3-A Sanitary Standards, and subject to the current applicable Grade “A” PMO or a State dairy regulatory requirement equivalent to the current applicable PMO. The Agency is moving forward to take final action on the proposed rulemaking that addresses those milk containers as expeditiously as possible. Additionally, the Agency is considering whether to exempt milk product containers, piping and appurtenances that are subject to the same 3-A Sanitary Standards and Grade “A” PMO specified for milk containers, associated piping and appurtenances. Therefore, the Agency is clarifying that the delay applies to both milk and milk product containers, associated piping and appurtenances constructed according to the current applicable 3-A Sanitary Standards, and subject to the current applicable Grade “A” PMO or a State dairy regulatory requirement equivalent to the current applicable PMO. The compliance date delay by which the owner or operator of a facility must address milk and milk product containers described above will provide time to complete this action.

EPA agrees that a single date by which the owners or operators of facilities must address milk and milk product containers, associated piping and appurtenances that are constructed according to the current applicable 3-A Sanitary Standards, and subject to the current applicable Grade “A” PMO or a State dairy regulatory requirement equivalent to the current applicable PMO in the facility's SPCC Plan, would offer clarity. A date will be established in a FR notice in the future and will be one year from the effective date of a final rule addressing the SPCC requirements specifically for these milk and milk product containers, associated piping and appurtenances, or as specified by a rule that otherwise establishes a compliance date for these facilities. During the delay, the owner or operator of the facility excludes milk and milk product containers, associated piping and appurtenances that are constructed according to the current applicable 3-A Sanitary Standards, and subject to the current applicable Grade “A” PMO or a State dairy regulatory requirement equivalent to the current applicable PMO from the facility's aggregate oil storage capacity calculations, and does not include these containers in the SPCC Plan.

However, when there are other oil storage containers (such as petroleum containers) at a facility that has milk and milk product containers, associated piping and appurtenances as described above and the facility meets the aggregate oil storage capacity thresholds of § 112.1  9 (excluding the capacity of the milk and milk product containers) then the owner or operator of the facility must maintain and amend, or prepare an SPCC Plan to address these other oil containers at the facility in accordance with § 112.3(a)(1) by November 10, 2011.

If an owner or operator of an SPCC-regulated facility requires additional time to comply with the SPCC rule, he may submit a written request to the Regional Administrator in accordance with § 112.3(f). Such requests may be granted if the Regional Administrator finds that the owner or operator cannot comply with all SPCC requirements by the compliance date as a result of either non-availability of qualified personnel, or delays in construction or equipment delivery beyond his control and without the fault of such owner or operator.

It should be noted that these compliance date amendments would affect only the requirements of the July 2002, December 2006, December 2008, and November 2009 SPCC rule amendments (67 FR 47042, July 17, 2002; 71 FR 77266, December 26, 2006; 73 FR 74236, December 5, 2008; and 74 FR 29136, November 13, 2009) that are new ( i.e., requirements that did not exist or were not in effect prior to the 2002 amendments) or more stringent compliance obligations to those that were in effect in the 1973 SPCC rule. Provisions that provide regulatory relief to facilities are applicable as of the effective date of the amendment and would not require revisions to existing Plans “to ensure compliance” ( see § 112.3). However, the facility owner or operator must amend the SPCC Plan to include new or more stringent provisions by the compliance date.

Under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993), this action has been determined to be a “significant regulatory action.” This rule was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB's recommendations have been documented in the docket for this action.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. This rule would merely extend the compliance date for certain facilities subject to the rule. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations at 40 CFR part 112 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2050-0021. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This rule extends the compliance date in § 112.3(a)(1) for most facilities by one year and delays the compliance date in § 112.3(c) by which facilities must address milk and milk product containers, associated piping and appurtenances that meet certain conditions by one year from the effective date of a final rule addressing the SPCC requirements specifically for these containers, or as specified by a rule that otherwise establishes a compliance date for these facilities. The changes in the final November 2009 amendments were very limited, and the December 2008 amendments offered compliance options that streamlined and tailored the regulatory requirements. By simply extending the compliance date for most facilities, today's rule will defer the regulatory burden for all affected entities.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. The action imposes no enforceable duty on any State, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule simply extends the compliance date for most facilities subject to the rule.

This rule does not have federalism implications. 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, as specified in Executive Order 13132. Under CWA section 311(o), States may impose additional requirements, including more stringent requirements, relating to the prevention of oil discharges to navigable waters. EPA encourages States to supplement the Federal SPCC regulation and recognizes that some States have more stringent requirements (56 FR 54612, October 22, 1991). This rule does not preempt State law or regulations. Thus, Executive Order 13132 does not apply to this rule.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). The rule does not significantly or uniquely affect communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

This action is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The overall effect of this action is to defer the regulatory burden on facility owners or operators subject to its provisions.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This final rulemaking involves technical standards. EPA proposes to use the 3-A Sanitary Standards, “Storage Tanks for Milk and Milk Products”, 3A 01-08, November 2001, developed by 3-A Sanitary Standards, Inc. A copy of these standards may be obtained from the 3-A Sanitary Standards online store at http://www.techstreet.com/3Agate.html; by contacting the organization at 6888 Elm Street, Suite 2D, McLean, Virginia 22101; by phone at (703) 790-0295; or by facsimile at (703) 761-6284. EPA is finalizing a delay of the compliance date to the SPCC rule, by which the owner or operator of a facility that is subject to the SPCC requirements, must address milk and milk product storage containers and associated piping and appurtenances constructed in accordance with 3-A Sanitary Standards, and subject to the current applicable Grade “A” PMO or a State dairy regulatory requirement equivalent to the current applicable PMO.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2) and will be effective on October 14, 2010.

GSA's Office of Governmentwide Policy (OGP) is updating the Federal Travel Regulation (FTR) by removing section 301-50.8. Section 301-50.8 contains language regarding limitations on travel arrangements for common carriers, commercial lodging, and car rental usage. Consequently, parts 301-10 and 301-11 will be revised to include the language pertaining to common carriers, commercial lodging and car rental accommodations. Specifically, OGP is revising section 301-10.105 regarding the basic requirements for using common carrier transportation and revising section 301-10.450 to provide guidance to travelers regarding renting vehicles under the Defense Travel Management Office's (DTMO) U.S. Government Car Rental Agreement. Also, section 301-11.11 is being revised to provide guidance to travelers who choose to obtain commercial lodging under a Government lodging agreement.

This final rule also updates references in section 301-73.106 and Appendix D to Chapter 301 to change “Surface Deployment Distribution Command” (SDDC) to “Defense Travel Management Office” (DTMO).

This is not a significant regulatory action, and therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This final rule is not a major rule under 5 U.S.C. 804.

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the revisions are not considered substantive. This final rule is also exempt from the Regulatory Flexibility Act per 5 U.S.C. 553(a)(2) because it applies to agency management or personnel. However, this final rule is being published to provide transparency in the promulgation of Federal policies.

The Paperwork Reduction Act does not apply because the final changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates to agency management and personnel.

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 pollock in Statistical Area 610 of the GOA is 26,256 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 Regional Administrator has determined that the 2010 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 26,156 mt, and is setting aside the remaining 100 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 pollock in Statistical Area 610 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 pollock in Statistical Area 610 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 October 7, 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.