This rule is issued under Marketing Agreement and Order No. 983, as amended (7 CFR part 983), regulating the handling of pistachios grown in California, Arizona, and New Mexico, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

The handling of pistachios grown in California, Arizona, and New Mexico is regulated by 7 CFR part 983. Prior to this change, pistachios for shipment to domestic markets were subject to different aflatoxin sampling and testing procedures than pistachios for shipment to certain export markets. This rule continues in effect an interim rule modifying the aflatoxin sampling and testing procedures to provide consistent and uniform procedures for pistachios regardless of market destination. These changes are intended to streamline handler operating procedures and reduce operating costs.

The specific changes modify the sampling procedure detailing how the samples will be created and analyzed, depending on the size of the pistachio lots. They also specify how the lots are certified based upon the aflatoxin levels found in the samples. Finally, the term “Chromatograph” is changed to “Chromatography” and unnecessary language was removed.

In an interim rule published in the Federal Register on July 23, 2010, and effective on July 24, 2010, (75 FR 43045, Doc. No. AMS-FV-10-0031, FV10-983-1 IR), § 983.150 (a), (d)(2), (d)(3), (d)(4), and (d)(6) were amended by removing unnecessary language from § 983.150(a), changing the creation and analysis of test samples in paragraph (d)(2), changing the term “Chromatograph” to “Chromatography” in paragraph (d)(3), changing the certification of lots based on aflatoxin levels in the samples in paragraph (d)(5), and removing the reference to sample #3 in paragraph (d)(6).

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

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

There are approximately 29 handlers and 875 producers of pistachios in California, Arizona and New Mexico. Small business firms, which include handlers regulated under the order, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000. Small agricultural producers have been defined as those with annual receipts of less than $750,000.

Currently, about 72 percent of the California handlers ship less than $7,000,000 worth of pistachios on an annual basis and would therefore be considered small business firms under the SBA definition. Based on acreage, production, and grower prices reported by the Committee, the average annual revenue for small handlers is approximately $1,721,911. The industry has estimated that one of the Arizona handlers and all three New Mexico handlers would also be considered small businesses.

Data provided by the Committee regarding the size of the 2009 California crop indicates that approximately 630 California growers had 350,000 pounds or less of assessable dry weight of pistachios. Using the most recent grower price of $2.04 per pound for pistachios, it is estimated that 81 percent of California producers had receipts of approximately $714,000, which is less than $750,000, and thus would be considered small business according to the SBA definition. Although there is no official data available to date, as these states were recently added to the order and have not completed one full crop year for reporting purposes, the industry estimates that the majority of producers in Arizona and New Mexico would also be considered small businesses.

This rule continues in effect the action that modified the aflatoxin sampling and testing regulations currently prescribed under the California, Arizona and New Mexico pistachio order, as well as removed unnecessary language and corrected terminology. The changes to § 983.150 are expected to reduce handler operating costs by providing a uniform and consistent aflatoxin sampling and testing procedure for pistachios shipped to all market destinations. Authority for the change in the order's rules and regulations is provided in § 983.50.

This action is expected to benefit producers and handlers, regardless of size and regardless of the market they ship into, as it streamlines handler operations and increases marketing flexibility. Reducing the number of required samples, the number of aflatoxin analyses, and the total weight of the lot samples, while increasing the weight of the test samples for each lot is expected to result in an estimated annual savings to the industry of approximately $18,000, including reductions of $900 for sampling, $1,400 for testing, $12,750 for labor, and $3,750 in shipping costs for those small handlers that do not do testing on site.

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

Further, the Committee's meeting was widely publicized throughout the pistachio industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the meeting was a public meeting and all entities, both large and small, were able to express their views on this issue.

Comments on the interim rule were required to be received on or before September 21, 2010. No comments were received. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

To view the interim rule, go to: http://www.regulations.gov and type the following docket number into the keyword search section: FV10-983-1 IR. Follow the link provided in the “Results” section of this page.

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

After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (75 FR 43045, July 23, 2010) will tend to effectuate the declared policy of the Act.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on July 27, 2010 (75 FR 43882). 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. Air Line Pilots Association, International (ALPA), supports the NPRM.

We reviewed the available data, including the comment received, 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 380 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. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $32,300, or $85 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.

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 September 1, 2010 (75 FR 53609). 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 79 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 $10,487 per product.

Based on these figures, we estimate the cost of the AD on U.S. operators to be $855,333, or $10,827 per product.

According to Embraer, the parts cost of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all cost in our cost estimate.

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 supersede airworthiness directive (AD) 2004-23-11, Amendment 39-13866 (69 FR 65522, November 15, 2004). That AD applies to the specified products. The NPRM was published in the Federal Register on August 5, 2010 (75 FR 47242). That NPRM proposed to continue to require repetitive high frequency eddy current inspections to detect cracks in the vertical radius (also known as the “vertical leg”) of the upper cap of the center wing rear spar, and repair if necessary. That NPRM also proposed to expand the area to be inspected by including inspections to detect cracking of the horizontal flange of the upper cap of the left and right center wing rear spar, and repair if necessary. In addition, that NPRM proposed to add certain airplanes to the applicability.

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.

There are approximately 510 airplanes of the affected design in the worldwide fleet. We estimate that 322 airplanes of U.S. registry will be affected by this AD. The following table provides the estimated costs for U.S. operators to comply with this AD.

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

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

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 all Model 757 airplanes. That NPRM was published in the Federal Register on June 3, 2010 (75 FR 31329). That NPRM proposed to require changing the lower fixed leading edge panel assemblies immediately outboard of the nacelles at slats 4 and 7.

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

Boeing concurred with the contents of the proposed AD. FedEx, Continental Airlines, and American Airlines had no technical objection to changing the lower fixed leading edge panel assemblies immediately outboard of the nacelles at slats 4 and 7, as specified in the proposed AD.

FedEx, Continental Airlines, and American Airlines requested that we correct the part number of a washer used in Figures 1 and 4 of Boeing Special Attention Service Bulletin 757-57-0070, dated January 27, 2010. The commenters stated that Boeing Service Bulletin Information Notice 757-57-0070 IN 01, dated March 17, 2010, corrects the part number of the washer, and that by including this correct part number in the proposed AD, requests for alternative methods of compliance (AMOC) will be reduced.

We agree with the request as stated. We have added the correct part number to paragraph (g) of this AD.

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

We estimate that this AD affects 697 airplanes of U.S. registry. We also estimate that it takes 9 work-hours per product to comply with 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 $533,205, or $765 per product.

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

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

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

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

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

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

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

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

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 June 4, 2010 (75 FR 31731). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We have determined that this AD should refer to the latest service information. We have reviewed Bombardier Service Bulletin 700-1A11-24-014, Revision 02, dated March 15, 2010; and Bombardier Service Bulletin 700-24-075, Revision 02, dated March 15, 2010; which introduce minor changes, but do not add any additional work. We have revised this final rule to include the latest version of the applicable Bombardier service information and to provide credit for work done before the effective date of this AD, in accordance with the previous revisions of the 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 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 115 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. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $9,775, or $85 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.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009-0265, dated December 16, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Airbus has issued Mandatory Service Bulletin A380-36-8009, including Service Bulletin Report Sheet, dated December 7, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

There are no products of this type currently registered in the United States. However, this rule is necessary to ensure that the described unsafe condition is addressed if any of these products are placed on the U.S. Register in the future.

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.

Since there are currently no domestic operators of this product, notice and opportunity for public comment before issuing this AD are unnecessary.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2010-1102; Directorate Identifier 2010-NM-016-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

For the reasons discussed above, I certify 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.

Discussion

Transport Canada Civil Aviation, which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2010-36, dated October 18, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

• Wear lines, cracks, fraying, tears, and evidence of chafing of the rubber seal of the MLG fairing;

• Missing and broken rollers, loose and missing fasteners, and damaged and missing stops of the MLG inboard doors; and damage along the edge of the MLG inboard door adjacent to the MLG fairing;

• Missing forward and aft stops, loose and missing fasteners of the MLG fairing; and damage along the edge of the MLG fairing adjacent to the MLG door; and

• Missing stops, loose and missing fasteners, and missing wedges of the stops and wedge on the forward and aft spars.

Bombardier has issued Alert Service Bulletin A670BA-32-030, Revision A, including Appendix A, dated October 22, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

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

We might 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.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the main landing gear may fail to extend, which could result in an asymmetric landing configuration. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2010-1106; Directorate Identifier 2010-NM-237-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

For the reasons discussed above, I certify 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.

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 7, 2010 (75 FR 38947). 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. The commenter supports the NPRM.

In August 2010, after the NPRM was published, the FAA type-certificated two new Airbus models: Models A330-223F and -243F, and we find that those models are also subject to the unsafe condition identified this AD action. We have added those models to the subject heading on page 1 and to paragraph (c)(1) of this AD. Since no airplanes of those models are presently on the U.S. Register, additional notice and opportunity for public comment on that topic before issuing this AD are unnecessary.

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 also 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 about 44 products of U.S. registry. (There are currently no Model A340 airplanes on the U.S. Register.) 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 $11,220, or $255 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.

I. Introduction

On February 26, 2010, the Commission adopted amendments to Rule 201 and Rule 200(g) of Regulation SHO. 1 Rule 201 requires that a trading center establish, maintain, and enforce written policies and procedures reasonably designed to prevent the execution or display of a short sale order of a covered security at a price that is less than or equal to the current national best bid if the price of that covered security decreases by 10% or more from its closing price as determined by the listing market for the covered security as of the end of regular trading hours on the prior day. 2 In addition, the Rule requires that the trading center establish, maintain, and enforce written policies and procedures reasonably designed to impose this short sale price test restriction for the remainder of the day and the following day when a national best bid for the covered security is calculated and disseminated on a current and continuing basis by a plan processor pursuant to an effective national market system plan. 3 The amendments to Rule 200(g) provide that broker-dealers may mark certain short sale orders “short exempt.”  4

Commission staff has been working with the markets and their participants since Rule 201 was adopted to resolve operational issues relating to implementation of the Rule. As part of these efforts, we have become aware that certain exchanges require additional time to address their procedures for conducting single-priced opening, reopening, and closing transactions (“single-priced transactions”) for covered securities that have triggered the Rule's circuit breaker. Specifically, we have been advised that certain exchanges may encounter difficulties in applying Rule 201, which uses the national best bid as a reference point, to their single-priced transactions. These transactions involve the queuing and ultimate execution of multiple orders at a single price, and the single equilibrium price determined through this process is based on orders on the exchange, without any reference to the national best bid at the time of execution. Due to potential operational concerns, we are providing additional time for exchanges that currently conduct single-priced transactions through a formalized and transparent process to address this issue in a manner that would be consistent with the requirements and goals of Rule 201's short sale price test restriction. 5

In addition, we believe that an extended compliance period may benefit industry participants by providing more time for programming and testing for compliance with the Rule's requirements. We have been informed that there have been some delays in the programming process, due in part to certain information, which was necessary to effectively program for compliance with Rule 201, being provided by various parties, including exchanges and data vendors, on dates that were later than originally anticipated. As a result, we have been informed that there may be an increased risk of technical or market problems if full implementation of Rule 201 is required by November 10, 2010.

As a result of these considerations, and in order to avoid any potential adverse effects on the markets from implementation of Rule 201 under the circumstances, we have determined to extend the compliance date to February 28, 2011 because we understand that this would provide the exchanges and other industry participants with sufficient time to resolve the issues surrounding implementation of Rule 201.

For the reasons cited above, the Commission, for good cause, finds that notice and solicitation of comment regarding the extension of the compliance date set forth herein are impractical, unnecessary, or contrary to the public interest. 6 The Commission notes that the compliance date is a few days away, and that a limited extension of the compliance date will facilitate the orderly implementation of Rule 201. In light of this time constraint, full notice and comment could not be completed prior to the November 10, 2010 compliance date. All industry participants will receive additional time to comply with Rule 201 and Rule 200(g) beyond the compliance date originally set forth in the Rule 201 Adopting Release. Further, the Commission recognizes that it is imperative for industry participants to receive notice of the extended compliance date, and providing immediate effectiveness upon publication of this release will allow industry participants to adjust their implementation plans accordingly. 7

The Commission identified certain costs and benefits associated with the amendments to Rule 201 and Rule 200(g) of Regulation SHO in the Rule 201 Adopting Release. The extension of the compliance date for the amendments to Rule 201 and Rule 200(g) of Regulation SHO will delay the benefits of the Rules, but the Commission believes that the limited extension is necessary and appropriate because it will provide (1) certain exchanges additional time to modify their current procedures for conducting single-priced transactions for covered securities that have triggered Rule 201's circuit breaker in a manner that is consistent with the goals and requirements of Rule 201, and (2) industry participants additional time for programming and testing for compliance with the requirements of Rule 201 and Rule 200(g). The extension also will delay the costs of complying with the amendments. 8 The Commission believes that the extension does not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act, because, as noted above, the extension will give exchanges additional time to modify certain of their current procedures, and industry participants additional time for programming and testing, in a manner that is consistent with the goals and requirements of the amendments to Rule 201 and Rule 200(g) of Regulation SHO.

The Upper Hack Bridge, across the Hackensack River at mile 6.9 has a vertical clearance in the closed position of 8 feet at mean high water and 13 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.723(d).

The waterway has seasonal recreational vessels, and commercial vessels of various sizes.

The owner of the bridge, New Jersey Transit, requested a temporary deviation to facilitate necessary electrical system upgrades and asbestos removal at the bridge.

Under this temporary deviation the Upper Hack Bridge, mile 6.9, across the Hackensack River may remain in the closed position from 8 a.m. on November 18, 2010 through 6 p.m. on November 19, 2010. Vessels that can pass under the bridge without a bridge opening may do so at all times.

In accordance with 33 CFR 117.35(e), the bridge 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 NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001 et seq.; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

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

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

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

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Background

The Crystal River is a tidal river on the west coast of Florida. Forming the headwaters of Crystal River is Kings Bay, a lake-like waterbody fed by numerous fresh-water springs. The Kings Bay springs constitute one of the most important natural warm-water refuges for manatees. The West Indian manatee ( Trichechus manatus ) is federally listed as an endangered species under the Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq. ) and the population is further protected as a depleted stock under the Marine Mammal Protection Act of 1972, as amended (MMPA) (16 U.S.C. 1361 et seq. ). The West Indian manatee includes two subspecies: The Florida manatee ( Trichechus manatus latirostris ) and the Antillean manatee ( Trichechus manatus manatus ). The Florida manatee's range includes Kings Bay.

Kings Bay is actively used by a growing population of manatees that now numbers in the hundreds of individuals (reaching 565 individuals in 2010) (Kleen 2010, pers. com.). Manatees primarily use the area in Kings Bay as a wintering site, relying on the bay's natural springs and adjacent forage areas for warmth and sustenance. When Gulf of Mexico water temperatures drop to about 68 °F (20 °C), manatees looking for warmer water will begin showing up regularly in Kings Bay around November 15 and tend to stay until about March 31; this is the identified “manatee season” when local manatee sanctuaries are in effect. Occasionally, manatees will appear in the region earlier with the advent of an early winter and may remain in the region longer, following severe or extended winters. When the weather begins to warm around the end of March, manatees generally move away from the springs and Kings Bay, traveling to summer foraging areas along Florida's west coast.

Over the last 30 years (1980-2010), the Service and the State of Florida have created a network of manatee protection areas within the Kings Bay area. During the manatee season, this network includes seven Federal manatee sanctuaries (which are described in our regulations at 50 CFR 17.108(a)(1)-(a)(7)) and five State manatee protection zones (as described in Chapter 68C-22, “The Florida Manatee Sanctuary Act” (2010)). This network of manatee protection areas is enforced by Service, State, and local law enforcement officers. Extensive outreach and education programs support the protection area network, encouraging the public who engage in manatee viewing activities to avoid harassing manatees.

This network of existing manatee protection areas was designed to prevent the take of manatees caused by waterborne activities, including but not limited to, boating and manatee viewing activities. It was established to allow manatees to continue to gain access to critical warm-water areas and important resting and foraging areas. Take, as defined by section 3(19) of the ESA, means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct. “Harm” is further defined by regulation at 50 CFR 17.3 to mean an act which actually kills or injures wildlife. “Harass” is also defined by regulation to mean any intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering (50 CFR 17.3). Take, as defined by section 3(13) of the MMPA, means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. Under section 3(18) of the MMPA, harassment is defined to include any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. All takings, including takings by harassment, are prohibited.

The Service can minimize take through the designation of manatee protection areas in the form of either a manatee refuge or a manatee sanctuary. Regulations authorizing designation of manatee refuges and sanctuaries in areas where prohibitions or restrictions on certain waterborne activities are needed to prevent the take of manatees are codified in 50 CFR 17 subpart J. A manatee refuge is defined as an area in which the Director has determined that: (1) Certain waterborne activities will take one or more manatees; or (2) certain waterborne activities must be restricted to prevent the take of one or more manatees, including but not limited to taking by harassment. A manatee sanctuary is an area where it has been determined that any waterborne activity will result in the taking of one or more manatees, including but not limited to a taking by harassment (50 CFR 17.102).

Waterborne activities that occur on the Service's Crystal River National Wildlife Refuge (NWR) property in Kings Bay that are known to take manatees are restricted pursuant to 50 CFR 17 subpart J and the National Wildlife Refuge Improvement Act (16 U.S.C. 668dd-668ee), which allows the Service to issue special-use permits for commercial and retail activities that occur on NWR property. The Banana Island Manatee Sanctuary, designated under 50 CFR part 17 subpart J, prohibits all waterborne activities from occurring on some submerged lands owned by this NWR. Commercial and retail activities that occur on NWR-owned land include manatee viewing, diving, snorkeling, videography, and others. Businesses wanting to engage in these activities on NWR property obtain special-use permits from Crystal River NWR. These permits are conditioned to require permittees to take those steps needed to make sure that their activities and those of their customers do not harass or otherwise take manatees.

Citrus County's coastal waters, including the waters of Kings Bay, are used for a variety of water-based recreational and commercial activities, including: Manatee viewing, snorkeling and scuba diving, boating, canoeing and kayaking, fishing, waterskiing, and other activities. Both Citrus County residents and visitors to the area engage in these activities. These activities are an important source of income for the area. Local eco-tour operators, dive shops, marinas, hotels and motels, restaurants, and other businesses benefit from these activities (Buckingham 1990b, p. 6). Kings Bay and its clear waters have catered to the scuba diving industry for decades (Kochman et al. 1983, p. 6). Beginning in the 1960s, the increasing presence of manatees generated a commercial interest in manatee viewing activities (Hartman 1979, pp. 126-131). Local dive shops and others in the community developed and now cater to individuals wanting to view manatees (Sorice et al. 2003, p. 327). Kings Bay is now a nationally and internationally recognized destination for winter-time manatee viewing. In 2001, more than 100,000 individuals were thought to visit the area to view manatees (MMC 2001, p. 125); the number of participants has likely increased since then.

Waterborne activities, including manatee viewing activities, and their effects on manatees have been investigated in Kings Bay (Hartman 1979, p. v; Packard 1983, p. i; Kochman et al. 1985, p. 921; Buckingham 1990b, p. 1; Buckingham et al. 1999, p. 514; Meigs-Friend 2003, p. 1; Sorice et al. 2003, p. 319; King and Heinen 2004, p. 227; Berger 2007, p. 1). Researchers described individual manatee responses to the presence of people in the water: Manatees generally avoided people; some approached people with curiosity and then left; and some manatees approached and solicited interactions with people (Hartman 1979, pp. 128-130; Buckingham 1990b, pp. 28-29). Some manatees appeared to become more tolerant of people through regular encounters. Researchers described swimmer encounters that disturbed manatees: Pursuit, riding, diving from the surface on to manatees, sounds from scuba regulators, bright lights from underwater videographers, and others (Hartman 1979, p. 131; Buckingham 1990b, p. 29; Sorice et al. 2003, pp. 328-333; King and Heinen 2004, pp. 228-232). On a more subtle level, manatees were observed to move from preferred use areas to other areas in response to increasing numbers of boats and people (Kochman et al. 1985, pp. 922-924; Buckingham 1990b, pp. 16-17; Buckingham et al. 1999, p. 514). In particular, manatees tended to move into sanctuary or no-entry areas in the presence of increasing numbers of boats and people (Kochman et al. 1985, pp. 922-924; Buckingham 1990b, pp. 16-17; Buckingham et al. 1999, pp. 514; King and Heinen 2004, pp. 231-232).

The number of people, boats, and manatees has been increasing in the west Florida coast region. In Citrus County, home to Kings Bay, the number of Citrus County residents increased by 19.8 percent, from 118,085 to 141,416, over the 2000-2008 period (U.S. Census Bureau 2010 Web site). Concurrent with this increase in number of residents, the number of boats registered in Citrus County increased by 36.2 percent. In 2009, there were 17,601 boats registered in Citrus County, an increase of 4,675 boats since 2000, when 12,926 vessels were registered there (FDHSMV 2010 Web site). While the number of visitor-owned watercraft that use Citrus County waterways, including Kings Bay, is unknown, this number is likely increasing, based on county revenue trends that describe an increasing number of visitors to the area. Revenue trends associated with businesses that cater to visitors, including Citrus County lodging and food service revenues and tourist tax revenues, have increased by 178 percent and 214 percent, respectively, over the past 10 years, suggesting an increase in the number of visitors to the area (U.S. Census Bureau 2010 Web site). Tourism surveys suggest that about half of all visitors to the area come to Citrus County to enjoy water-based activities that include manatee viewing, snorkeling, and diving (Gold 2008, pp. 4-5).

In January 2010, Crystal River NWR researchers counted 646 manatees in Citrus County's coastal waters, including 565 manatees in Kings Bay. This is the highest number of manatees ever counted in this region and in Kings Bay (Kleen 2010, pers. com.). Wintering manatees have been counted by aerial survey in the region since the 1983-1984 winter, when 142 manatees, including 124 in Kings Bay and Crystal River, were first observed (Kleen 2010, pers. com.). The manatee population in Florida's Northwest Region grew at a rate of 4.0 percent per year through 2000, based on an assessment of adult survival rates (Runge et al. 2004, p. 371).

In the State's northwest region, adult manatee mortality is almost equally partitioned between human-related and natural causes, with watercraft collisions being the leading cause of human-induced mortality. For nonadults, perinatal mortality is the most common cause of death, with watercraft collisions ranked second. Each year, manatees are injured and/or killed by watercraft in Citrus County. From 1974-2009, 58 manatees died from collisions with watercraft in county waterways, including 15 manatees in Kings Bay. In 2008, the Florida Fish and Wildlife Conservation Commission (FWC) recorded the highest number (8) of manatees ever killed by watercraft in Citrus County (FWC FWRI Manatee Mortality Database 2010 Web site). Watercraft-related deaths occur throughout the year in this region, including Kings Bay. To reduce the number of watercraft-related collisions with manatees, boaters must adhere to State manatee-protection-zone speed restrictions, enforced by Service, State, and local law enforcement agencies. Additional no-entry areas created by this rulemaking will supplement efforts to reduce this source of mortality.

The impacts of encounters with manatees have been investigated in Citrus County for many years. Manatee responses to viewing participants and boats have been documented (Sorice et al. 2003, p. 324). Researchers noted increases in swimming, milling, and cavorting behaviors and decreases in resting, feeding, and nursing behaviors when numbers of people and boats increased (Abernathy 1995, pp. 23-26; Wooding 1997, p. 1; King and Heinen 2004, pp. 230-231). They also observed that increases in numbers of boats and participants prompted manatees to use other areas (Kochman et al. 1985, pp. 922-924; Buckingham et al. 1999, p. 514). However, none of these studies' observations of manatee responses to viewing participants and boats suggest that harm (killing or injuring of manatees) has occurred or is occurring (Sorice et al. 2003, p. 320). Nor have there been any significant increases in the number of cold-related injuries and mortalities in the northwest Florida region, and manatee survival rates are among the highest in Florida (FWC FWRI Manatee Mortality Database 2010 Web site; Runge et al. 2007, p. 20).

Manatee harassment, largely associated with wintertime manatee viewing activities, is known to occur, and the Service, State, and other law enforcement agencies actively enforce harassment laws in Citrus County and in Kings Bay. Cited acts of harassment include trespass by individuals viewing manatees into manatee sanctuaries where the Service has determined that any waterborne activity occurring within these areas will result in take of manatees, including but not limited to take by harassment. Outside of these areas, the public disturbs and occasionally harasses manatees while engaged in viewing and other waterborne activities. When observed, violators are warned or cited. Given variations in enforcement practices and recordkeeping systems, numbers and trends in numbers of issued warnings and citations are difficult to interpret. As such, these records are not used to describe trends in harassment activity. Indirectly, the presence of large numbers of people in the vicinity of manatees may cause some animals to abandon the area, another form of harassment.

Increasing numbers of in-water visitors to Kings Bay and an absence of adequate space at wintering areas in which manatees can shelter free from harassment and other forms of take prompt the need for this emergency designation. Without sufficient space within the existing Kings Bay sanctuaries to shelter, rest, and feed free from harassment, manatees are at risk when exposed to cold temperatures for any length of time. The numbers of visitors and manatees have increased since 1998 when the last sanctuary was designated in Kings Bay (63 FR 55553; October 16, 1998), and researchers have documented dozens of manatees outside the boundaries of the seven existing Kings Bay sanctuaries, already filled to capacity with wintering manatees (Kleen 2010, pers. com.). Manatees have been harassed in areas that are outside the boundaries of the existing sanctuaries (Aloise 2010, pers. com.), and acts of harassment are likely to increase in the absence of additional measures. Pursuant to our authorities to designate manatee protection measures whenever substantial evidence exists of an imminent danger of a taking, including harassment, of one or more manatees, we believe that this emergency rulemaking is needed to prevent such take.

Additional measures used to address manatee harassment, include, additional law enforcement, increasing and improved outreach and education efforts including on-water volunteer efforts to educate manatee viewers, improved coordination with local eco-tour operators, special-use permits, and land acquisition and management activities.

Researchers believe that manatee protection areas, which can include sanctuaries or refuges, when combined with law enforcement, good outreach and education messages and efforts, and some limitations on activities and participant numbers, are an effective tool for reducing adverse effects associated with manatee viewing activities (Kraus 2003, pers. com.; Buckingham et al. 1990a, pp. 58-63). However, the effectiveness of these measures is diminished when: (1) Existing sanctuaries cannot provide enough space for all manatees seeking to use them; (2) limited numbers of enforcement officers are available to enforce regulations; (3) there are conflicting and inadequate education and outreach efforts and; (4) the Service's ability to control the number of people who come to view manatees is limited (Kraus 2003, pers. com.; Sorice et al. 2006, pp. 69-83).

At present, the current sanctuaries do not provide adequate space for all manatees wanting to use these sites. Observations from both aerial survey and on-water observers describe dozens of manatees unable to access overcrowded sanctuaries (Kleen 2010, pers. com.; Lusk 2010, pers. com.). This increase in the number of manatees unable to access the sanctuaries is consistent with the recent record high count of manatees (565) in Kings Bay in January 2010. Similarly, the number of residents, visitors, and boats in the area, including those who engage in manatee viewing activities, has increased. While not quantified, the number of public reports of purported manatee harassment received by Crystal River NWR is increasing (Lusk 2010, pers. com.). The presence of increasing numbers of manatees just outside of sanctuary boundaries, where they are more accessible to increasing numbers of people who come to view manatees, provides increasing opportunities for harassment to occur. While the existing network does provide a level of protection for wintering manatees, the network, in its current condition, is unable to provide the level of protection needed to prevent increasing acts of harassment from occurring in the face of increasing numbers of manatees and manatee viewing participants.

To further prevent acts of harassment and other forms of take from occurring in Kings Bay, through this emergency rule, we designate the entire area as a manatee refuge. The areas covered by this emergency rule are shown in the map in the rule portion of this document. With this designation, we will implement measures that will improve our ability to address potential take associated with manatee viewing and other activities. These protection measures will establish, as needed, additional no-entry areas outside of and within specified distances from existing manatee sanctuaries where all waterborne activities, including swimming, diving (including skin and scuba diving), snorkeling, water skiing, surfing, fishing, and the use of water vehicles (including but not limited to boats powered by engine, wind or other means; ships powered by engine, wind or other means; barges, surfboards, personal watercraft, water skis, and any other devices or mechanisms capable of locomotion on, across, or underneath the surface of the water) are prohibited from November 15 to March 15. We will also restrict and/or prohibit specific actions known to take manatees in Kings Bay outside of existing manatee sanctuaries, like riding or attempting to ride a manatee.

Increasing numbers of manatees, increasing levels of human activities known to take manatees, and an outdated protected area network for addressing manatee harassment-related takings in Kings Bay prompts the need to implement additional measures now so that adequate protections will be in place in time for the start of the upcoming winter manatee season. The existing protected area network was last modified 14 years ago in 1998, when a high count of 250 manatees was observed in Kings Bay. Since that time, the number of manatees using Kings Bay has more than doubled, the number of Citrus County residents has increased by almost 20 percent, the number of locally registered boats has increased by 36 percent, and the number of people coming to view manatees in Crystal River exceeds the estimated 100,000 visitors who came to see manatees in 1998. Increasing numbers of manatees and members of the public engaged in manatee viewing activities are overwhelming the manatee protection area network. Additional protection measures need to be in place prior to the upcoming winter season (which starts on November 15, 2010) as described earlier in this document.

This emergency rule will give manatees protection from harassment at a time when they are unable to find refuge within the existing Federal manatee sanctuaries and are vulnerable to harassment due to the cold temperatures that confine them to Kings Bay. Designating manatee protection areas to prohibit the take of manatees in Kings Bay is consistent with our authorities under the ESA and the MMPA. The designation of a manatee refuge in Kings Bay is also consistent with the Service's Florida Manatee Recovery Plan (2001), which identifies the implementation of strategies to eliminate or minimize manatee harassment as an action needed to further the recovery of this species (USFWS 2001). Our authority to create manatee protection areas to prevent the take of manatees is codified in 50 CFR subpart J, which authorizes the Director to establish manatee refuges and sanctuaries. This authority also authorizes the Service to designate, on an emergency basis, manatee protection areas when it is determined that there is evidence of imminent danger of a taking of one or more manatees and that establishment of a manatee protection area is necessary to prevent such a taking.

This emergency rule establishes a manatee refuge in Kings Bay to prevent the imminent take of manatees resulting from manatee viewing and other activities known to occur in this area. To prevent the imminent take of manatees in Kings Bay, this emergency rule will (1) prohibit all waterborne activities from specified areas outside of existing sanctuaries where manatees that are unable to gain access and avoid harassment due to overcrowding are found; and (2) identify and restrict certain waterborne activities known to take manatees in Kings Bay, including actions taken by manatee viewing participants known to disturb manatees.

The emergency manatee refuge is located within the waters of Kings Bay and connecting waters and tributaries west of U.S. Highway 19 and upstream of the confluence of the Crystal River and Kings Bay. This designation of an emergency manatee refuge will not change the boundaries of the existing manatee sanctuaries in Kings Bay. See map below in the rule portion of this document.

When we initiate proceedings to develop a proposed rule to establish the manatee refuge area as required by § 17.106 and during the rulemaking process, we will consider the possible issuance of permits in accordance with § 17.105 and section 104 of the MMPA. Regulations under 50 CFR 17.105 authorize the Service to issue permits allowing activities, otherwise prohibited under 50 CFR 17.106 or 50 CFR 17.108, for scientific purposes or for the enhancement of propagation or survival. We will also explore other means to authorize activities otherwise prohibited under 50 CFR 17.106 or 50 CFR 17.108.

To protect manatees until we can complete the proposed rule and final rule that will permanently establish additional manatee protections in Kings Bay, the Service believes it is critical to establish a manatee refuge on an emergency basis to prevent the imminent take of manatees in Kings Bay from waterborne activities during the upcoming winter months. Specifically, we are establishing this manatee refuge now on an emergency basis to prevent acts of take including manatee harassment associated with manatee viewing and other activities this winter. This refuge designation will remain in place for 120 days, from November 15, 2010, to March 15, 2011. Consistent with our authority under our regulations at 50 CFR 17.106 to designate manatee protection areas on an emergency basis, within 10 days of this emergency designation, we will initiate the proceedings to establish the manatee refuge area as required by our regulations at 50 CFR 17.106(e).

The proceedings to establish the manatee refuge area will include a series of four public meetings as described below. All four public meetings will be held at the Plantation Inn and Golf Resort, 9301 W. Fort Island Trail, Crystal River, FL 34429.

First, we will hold two informational public meetings. The purpose of these informational public meetings is to provide the public with an opportunity to learn more about the emergency designation of a manatee refuge in Kings Bay, why the Service took this action, and to ask questions about the emergency designation. These informational public meetings will be held on:

(1) Tuesday, November 16, 2010, from 6 to 9 p.m.; and

(2) Thursday, November 18, 2010, from 6 to 9 p.m.

Next, we will hold two, non-decision making, informal public meetings to discuss the process of formally establishing Kings Bay as a manatee refuge. The purpose of these informal public meetings is to provide the public with information on the next steps in the process, as well as for the exchange of useful information. These informal public meetings will be held on:

(1) Saturday, November 20, 2010, from 1 to 4 p.m.; and

(2) Thursday, December 2, 2010, from 6 to 9 p.m.

In accordance with the Administrative Procedure Act, we find good cause as required by 5 U.S.C. 553(d)(3) to make this rule effective sooner than 30 days after publication in the Federal Register . As discussed above under “Emergency Determination,” we need to establish this manatee protection area (Kings Bay refuge) prior to the time when manatees will be seeking warmer waters in Kings Bay for the winter. A 30-day delay in making these sites effective would result in further risks of manatee mortality, injury, and harassment during the period of delay. In view of the evidence that there is imminent danger that manatees will be taken in the waters of Kings Bay and in its tributaries and connected waters, we believe good cause exists to make this rule effective upon November 15, 2010. For the same reasons, we also believe that we have good cause under 5 U.S.C. 553(b)(3)(B) to issue this rule without prior notice and public procedure. We believe such emergency action is in the public interest because of the imminent threat to manatees and the additional time required to complete the standard rulemaking process. The lack of emergency action could result in additional take of manatees. This rule does not supersede any more stringent State or local regulations.

During the process of preparing a proposed rule to establish this manatee protection area, which will commence through a public workshop as described above under “Emergency Determination,” we will be evaluating this action in relation to possible economic impact, its effect on small businesses, and other required determinations. These required determinations will be included in the proposed rule.

For a list of the references cited in this rule, see Docket No. FWS-R4-ES-2010-0079, available at http://www.regulations.gov.

The primary author of this document is Jim Valade (see ADDRESSES section).

The statutory authority to establish manatee protection areas is provided by the Endangered Species Act of 1973, as amended (16 U.S.C 1531 et seq. ), and the Marine Mammal Protection Act of 1972, as amended (16 U.S.C 1361 et seq. ).

Pelagic longline fishing in the western and central Pacific Ocean is managed, in part, under the Western and Central Pacific Fisheries Convention Implementation Act (Act). Regulations governing fishing by U.S. vessels in accordance with the Act appear at 50 CFR part 300, subpart O.

NMFS established a limit (74 FR 63999, December 7, 2009, and codified at 50 CFR 300.224) for calendar year 2010 of 3,763 metric tons (mt) of bigeye tuna ( Thunnus obesus ) that may be caught and retained in the U.S. pelagic longline fishery in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention Area). NMFS monitored the retained catches of bigeye tuna using logbook data submitted by vessel captains and other available information, and determined that the 2010 catch limit is expected to be reached on November 22, 2010. In accordance with § 300.224(d), this rule serves as advance notification to fishermen, the fishing industry, and the general public that the U.S. longline fishery for bigeye tuna in the Convention Area will be closed starting on November 22, 2010, through the end of the 2010 calendar year. The 2011 fishing year is scheduled to open on January 1, 2011; the 2011 bigeye tuna catch limit will be 3,763 mt. This rule does not apply to the longline fisheries of American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands (CNMI), as described below.

During the closure, a U.S. fishing vessel may not retain on board, transship, or land bigeye tuna captured by longline gear in the Convention Area, except that any bigeye tuna already on board a fishing vessel upon the effective date of the restrictions may be retained on board, transshipped, and landed, provided that they are landed within 14 days of the start of the closure, that is, by December 6, 2010. This 14-day landing requirement does not apply to a vessel that has declared to NMFS, pursuant to 50 CFR 665.803(a), that the current trip type is shallow-setting.

Furthermore, bigeye tuna caught by longline gear may be retained on board, transshipped, and landed if the fish are caught by a vessel registered for use under a valid NMFS-issued American Samoa Longline Limited Access Permit or if they are landed in American Samoa, Guam, or the CNMI. In either of these two cases, however, the following conditions must be met:

(1) The bigeye tuna are not caught in the portion of the U.S. Exclusive Economic Zone (EEZ) around the Hawaiian Archipelago;

(2) Such retention, transshipment, and/or landing is in compliance with applicable laws and regulations; and

(3) The bigeye tuna are landed by a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.801.

During the closure, a U.S. vessel is also prohibited from transshipping bigeye tuna caught in the Convention Area by longline gear to any vessel other than a U.S. fishing vessel operated with a valid permit issued under 50 CFR 660.707 or 665.801.

The catch limit and this closure do not apply to bigeye tuna caught by longline gear outside the Convention Area, such as in the eastern Pacific Ocean. To ensure compliance with the restrictions related to bigeye tuna caught by longline gear in the Convention Area, however, the following requirements apply during the closure period:

(1) A U.S. fishing vessel may not be used to fish with longline gear both inside and outside the Convention Area during the same fishing trip, with the exception of a fishing trip that is in progress on November 22, 2010. In that case, the catch of bigeye tuna must be landed by December 6, 2010; and

(2) If a U.S. vessel is used to fish using longline gear outside the Convention Area and the vessel enters the Convention Area at any time during the same fishing trip, the longline gear on the fishing vessel must be stowed in a manner so as not to be readily available for fishing while the vessel is in the Convention Area. Specifically, the hooks, branch or dropper lines, and floats used to buoy the mainline must be stowed and not available for immediate use, and any power-operated mainline hauler on deck must be covered in such a manner that it is not readily available for use.

The above two additional prohibitions do not apply to the following vessels:

(1) Vessels on declared shallow-setting trips pursuant to 50 CFR 665.803(a); and

(2) Vessels registered for use under valid American Samoa Longline Limited Access Permits and vessels landing their bigeye tuna catch in American Samoa, Guam, or the CNMI, so long as these vessels conduct fishing activities in accordance with the conditions described above, that is, the bigeye tuna were not caught in the EEZ around the Hawaiian Archipelago, the retention, transshipment, and/or landing is in compliance with applicable laws and regulations, and the bigeye tuna are landed by a vessel that has a valid permit issued under 50 CFR 660.707 or 665.801.

There is good cause to waive prior notice and opportunity for public comment pursuant to 5 U.S.C. 553(b)(B). This action is based on the best available information and is necessary for the conservation and management of bigeye tuna. Compliance with the notice and comment requirement would be impracticable and contrary to the public interest, since NMFS would be unable to ensure that the 2010 bigeye tuna catch limit is not exceeded. The annual catch limit is an important mechanism to ensure that the U.S.A. complies with its international obligations in preventing overfishing and managing the fishery at optimum yield. Moreover, NMFS previously solicited public comments on the rule that established the catch limit (74 FR 63999, December 7, 2009). For the same reasons, there is good cause to establish an effective date less than 30 days after date of publication of this notice.

This action is required by § 300.224(d) and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands management area (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.

NMFS closed the directed fishery for Pacific ocean perch (POP) in the Bering Sea subarea of the BSAI under § 679.20(d)(1)(iii) on January 1, 2010 (75 FR 11778, March 12, 2010).

NMFS has determined that approximately 2,260 metric tons of POP remain in the directed fishing allowance. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2010 total allowable catch of POP in the Bering Sea subarea of the BSAI, NMFS is terminating the previous closure and is opening directed fishing for POP in Bering Sea subarea of the BSAI. This will enhance the socioeconomic well-being of harvesters dependent upon POP in this area. The Administrator, Alaska Region considered the following factors in reaching this decision: (1) The current catch of POP in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels participating in this fishery.

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 opening of POP in the Bering Sea subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of November 3, 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.

Without this inseason adjustment, NMFS could not allow the fishery for POP in the Bering Sea subarea of the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until November 19, 2010.

This action is required by § 679.20 and § 679.25 and is exempt from review under Executive Order 12866.