The Agency administers the Thrift Savings Plan (TSP), which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).

On October 14, 2010, the Agency published a proposed rule with request for comments in the Federal Register (75 FR 63106). The Agency received no comments on its proposed regulation. Therefore, the Agency is publishing the proposed rule as final without modification.

The Agency currently offers five Lifecycle funds: L Income, L 2010, L 2020, L 2030, and L 2040. The Agency will retire the L 2010 Fund when it reaches its target date of December 31, 2010. Upon retiring the L 2010 Fund, the Agency will transfer all money invested in the L 2010 Fund to the L Income Fund. Participants will no longer be able to make contributions to the L 2010 Fund after December 31, 2010. In effect, the L 2010 Fund will no longer exist.

The Agency anticipates receiving late and makeup contributions that would have been invested in the L 2010 Fund had they been made on time. Likewise, the Agency anticipates needing to remove funds erroneously contributed to the L 2010 Fund prior to its retirement date. The Agency uses the current share price of the applicable investment fund when calculating the value of late contributions, makeup contributions, and negative adjustments. Because the L 2010 Fund will no longer exist, the Agency must construct an appropriate “current” share price in order to make error corrections involving the L 2010 Fund after December 31, 2010.

The Agency proposes to calculate the constructed share price for the L 2010 Fund as follows: The constructed share price is the L 2010 Fund share price on December 31, 2010, multiplied by the current L Income Fund share price, divided by the L Income Fund share price on December 31, 2010. This calculation reflects the impact of merging assets of the L 2010 Fund into the L Income Fund on December 31, 2010. The Agency will apply this calculation to retired Lifecycle funds in the future by substituting the specific Lifecycle fund and target retirement date as follows: The constructed share price is the retired Lifecycle fund share price on December 31 of the retirement year, multiplied by the current L Income Fund share price, divided by the L Income Fund share price on December 31 of the retirement year.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation will affect Federal employees and members of the uniformed services who participate in the Thrift Savings Plan, which is a Federal defined contribution retirement savings plan created under the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514, and which is administered by the Agency.

I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act.

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under section 1532 is not required.A01DE0.

Pursuant to 5 U.S.C. 810(a)(1)(A), the Agency submitted 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 before publication of this rule in the Federal Register . This rule is not a major rule as defined at 5 U.S.C. 804(2).

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 43103). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI, issued on May 26, 2010, 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 52 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 on U.S. operators to be $4,420 or $85 per product.

In addition, we estimate that any necessary follow-on actions will take about 1 work-hour and require parts costing $51, for a cost of $136 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 AD that would apply to the specified products. That NPRM was published in the Federal Register on November 18, 2009 (74 FR 59483), and proposed to supersede AD 2006-12-13, Amendment 39-14639 (71 FR 33994, June 13, 2006). 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.

FedEx Express commented that the NPRM would affect 57 of its airplanes. FedEx Express states that the inspections do not require any special inspection techniques, training, or tooling, and that it has scheduled the proposed inspections although it has not yet inspected any airplanes. FedEx Express also states that the inspection interval is sufficient, but if cracks are found, significant downtime will be required.

From these comments, we infer that FedEx Express is requesting that we revise the Costs of Compliance section of the NPRM. We do not agree with the request. We recognize that, in accomplishing the requirements of any AD, operators might incur “incidental” costs in addition to the “direct” costs that are reflected in the cost analysis presented in the AD preamble. However, the cost analysis in AD rulemaking actions typically does not include incidental costs. We have, however, reviewed the figures that we have used over the past several years to calculate costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $80 per work hour to $85 per work hour. The cost impact information, below, reflects this increase in the specified hourly rate. We have also corrected the calculations used in determining the cost to operators.

Paragraph (p)(5) of the NPRM specifies contacting Airbus for a repair solution and doing the repair. The European Aviation Safety Agency (EASA) has assumed responsibility for the airplane models subject to this AD. Therefore, we have revised paragraph (p)(5) of this AD to add a provision for making repairs using a method approved by either the Manager of the International Branch, ANM-116, Transport Airplane Directorate, FAA or the EASA (or its delegated agent).

We have revised paragraphs (j) and (k) of this AD; and Tables 1, 2, 3, 4, and 5 of this AD to remove Airbus Model A300 B2-1A, F4-622R, and C4-605R Variant F airplanes. We have determined that these airplanes were inadvertently carried over from the paragraph callouts of the previous AD into the NPRM. These airplanes are not subject to the identified unsafe condition and therefore are not affected by this AD.

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 155 products of U.S. registry.

The actions that are required by AD 2006-12-13 and retained in this AD take about 76 work-hours per product, at an average labor rate of $85 per work hour. Required parts cost about $10,270 per product. Based on these figures, the estimated cost of the currently required actions is $16,730 per product.

We estimate that it will take about 3 work-hours per product to comply with the new 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 $39,525 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.

The FAA issued a second supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to certain Model 737-600, -700, -700C, -800, and -900 series airplanes. That second supplemental NPRM was published in the Federal Register on March 23, 2009 (74 FR 12094). That second supplemental NPRM proposed to require sealing the fasteners on the front and rear spars inside the main fuel tank and on the lower panel of the center fuel tank, inspecting the wire bundle support installation in the equipment cooling system bays to identify the type of clamp installed and determine whether the Teflon sleeve is installed, and doing related corrective actions if necessary.

The second supplemental NPRM cited Boeing Alert Service Bulletin 737-57A1279, Revision 1, dated September 25, 2008, as the appropriate source of service information. Boeing has since revised the service bulletin. Boeing Service Bulletin 737-57A1279, Revision 2, dated February 2, 2010, incorporates additional data that were included in Boeing Information Notice (IN) 737-57A1279 IN 02, dated September 25, 2008; 737-57A1279 IN 03, dated October 30, 2008; and 737-57A1279 IN 04, dated March 13, 2009. This additional information does not add more work.

Boeing has also issued IN 737-57A1279 IN 05, dated April 8, 2010. This IN specifies that Model 737-800 and -900 airplanes may have an additional clamp located at stringer 10 that requires the work shown in the steps of Figures 6, 7, 10, and 11 of Boeing Service Bulletin 737-57A1279, Revision 2, dated February 2, 2010, in the environmental control system bay of the affected airplanes.

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

Boeing reviewed the second supplemental NPRM and concurred with the contents of the proposed rule.

Continental Airlines (CAL) expressed continued concern that the manufacturer needs to update the maintenance service documents to avoid inadvertently demodifying the work that this AD requires, which would result in potential enforcement action against CAL. CAL commented that to ensure compliance with the maintenance planning data Fuel System Airworthiness Limitations, the requirements of Appendix H.1(a) of the Federal Aviation Regulations (14 CFR 25); and the requirements of sections 26.1(a), 26.1(b)(2), and 26.1(b)(3) of the Federal Aviation Regulations (14 CFR 26.1(a), 14 CFR 26.1(b)(2), and 14 CFR 26.1(b)(3)); must be complied with by the original equipment manufacturer or type certificate holder. In addition, the operator must also comply with section 91.1507(e) of the Federal Aviation Regulations (14 CFR 91.1507(e)); and section 121.1113(e) of the Federal Aviation Regulations (14 CFR 121.1113(e)). CAL stated that these procedures conflict with the regulations of sections 25.1529 and 25.1729 of the Federal Aviation Regulations (14 CFR 25.1529 and 25.1729) and applicable provisions of 14 CFR parts 21 and 26.

We acknowledge the commenter's concern. However, no new ICAs have been developed for the design change required by this AD. Operators and owners are responsible for ensuring that the configuration mandated by this AD is maintained in accordance with section 39.7 of the Federal Aviation Regulations (14 CFR 39.7).

If any new airworthiness limitations (AWLs) related to any of the design features mandated by this AD are developed, we may consider additional rulemaking to mandate incorporations of those AWLs into operators' maintenance programs. We have not changed the AD in regard to this issue.

CAL cited sections 91.1507(e) of the Federal Aviation Regulations (14 CFR 91.1507(e)) and other regulations and expresses concern that the absence of the ICAs could result in enforcement action. That section requires operators to include in their maintenance programs all fuel system ICAs developed under Special Federal Aviation Regulation (SFAR) 88. However, that regulation requires operators to incorporate ICAs provided by the design approval holder. Since no ICAs were developed for the required modification, operators do not violate that regulation if their maintenance programs do not yet contain ICAs for the referenced design change. However, under section 39.7 of the Federal Aviation Regulations (14 CFR 39.7), it is still the responsibility of the operators to keep their airplanes in a configuration that is in compliance with the AD. We have not changed the AD in regard to this issue.

The FAA is working with industry to evaluate potential changes to the AD process that are intended to more clearly identify how to maintain configurations that are required for AD compliance.

The Air Transport Association (ATA), on behalf of its member American Airlines (AA), requested that we clarify the “applicability requirements” in paragraph (i) of the second supplemental NPRM to state that modifications should be acceptable for compliance with the AD if they were made in accordance with Boeing Alert Service Bulletin 737-57A1279, dated January 24, 2007, and if the table in paragraph 1.A., “Effectivity,” of that service bulletin was used to correctly determine which airplanes are subject to the requirements of paragraph (i) of the AD. The commenter noted that the variable numbers following the table are erroneous.

Lufthansa Technik (LTK) also requested that we revise paragraph (i) of the second supplemental NPRM. LTK requested that we consider airplanes with line numbers 571 through 1691 inclusive on which the referenced actions have been performed in accordance with Boeing Alert Service Bulletin 737-57A1279, dated January 24, 2007, to be compliant with the proposed AD.

We agree with the requests to clarify which airplanes are subject to the requirements of paragraph (i) of this final rule. We have revised paragraph (i) of this final rule to state that actions done using the group assignments by line numbers found in the table in paragraph 1.A., “Effectivity,” and in accordance with the original service bulletin, Boeing Service Bulletin 737-57A1279, dated January 24, 2007, are acceptable for compliance with the corresponding requirements of this AD.

The ATA, on behalf of its member AA, proposed an alternative sleeving procedure. In its comment, AA stated that the Teflon sleeve installation cannot be accomplished as shown in Figure 13 of Boeing Alert Service Bulletin 737-57A1279, dated January 24, 2007. AA stated that Figure 9 of the service bulletin shows that the adjacent tube conduit does not allow the sleeve to be 3 inches long and centered on the clamp. AA proposed that an alternative sleeving procedure extend the sleeving at least 1 inch beyond the edge of the clamp. If 1 inch of sleeving cannot be achieved, AA suggested that the sleeving be extended as far as possible.

We agree that clarification may be necessary. Boeing is revising Boeing Alert Service Bulletin 737-57A1279 to address this issue. However, due to the urgency of the unsafe condition and in consideration of the amount of time that has already elapsed since issuance of the original service bulletin, we have determined that further delay of this final rule is not appropriate. We disagree with the request to allow an alternative Teflon sleeving procedure in this final rule. We do not have sufficient data that indicate this procedure provides an acceptable level of safety. If operators can provide sufficient data to indicate that an alternative Teflon sleeving procedure would provide an acceptable level of safety, operators can request approvals of AMOCs in accordance with the requirements of paragraph (j) of this final rule. We have not changed the final rule regarding this issue.

The ATA, on behalf of its member AA, requested that we remove the proposed requirement to reseal the fasteners if already done previously in accordance with Boeing Alert Service Bulletin 737-57A1279, dated January 24, 2007. In its comment, AA stated that sealant has been previously applied at some fastener locations in the center tank and the wing tanks during airplane assembly. Therefore, AA stated, it is not possible to accomplish the steps in Figures 14 and 15 of that service bulletin, and AA proposed that if the fasteners are sealed in accordance with that service bulletin, then no further work should be required. AA also stated that Boeing 737-57A1279 Information Notice (IN) 04, dated March 13, 2009, addresses this issue.

We agree with the commenter. Boeing 737-57A1279 IN 04, dated March 13, 2009, states that for fasteners that have been previously sealed to the specifications of Boeing Alert Service Bulletin 737-57A1279, it is not required for the existing seal to be removed and the fastener sealed again. Boeing Service Bulletin 737-57A1279, Revision 2, dated February 2, 2010, incorporates the information included in Boeing 737-57A1279 IN 04, dated March 13, 2009. We updated this final rule to refer to Boeing Alert Service Bulletin 737-57A1279, Revision 2, dated February 2, 2010, as an appropriate source of service information.

The ATA, on behalf of its member AirTran Airways, requested that we approve Boeing Information Notices 03 and 04 as sources of service information for the supplemental NPRM. In its comment, AirTran Airways stated that the information notices clarify and provide corrections to Boeing Service Bulletin 737-57A1279, Revision 1, dated September 25, 2008.

We partially agree. We acknowledge that the information contained in these notices may be useful to operators to complete the requirements of this AD. However, Boeing has issued Boeing Service Bulletin 737-57A1279, Revision 2, dated February 2, 2010, to include the information in the information notices. We have revised the final rule accordingly.

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

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.

There are about 1,754 airplanes of the affected design in the worldwide fleet; of these, 645 airplanes are U.S.-registered. The following table provides the estimated costs for U.S. operators to comply with this final rule, at an average hourly labor rate of $85.

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

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

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

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

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

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

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

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

The requirements and prohibitions under RESPA apply to residential real estate transactions that include a federally related mortgage loan. Section 8 of RESPA prohibits giving and receiving “kickbacks” for the referral of real estate settlement services, and unearned fees, involving real estate transactions. Since 1992, HUD's RESPA regulations have defined “settlement service” to include “homeowner's warranties”. 24 CFR 3500.2(11). While a referral of settlement services is not compensable under RESPA, a real estate broker or agent (or other person in a position to refer settlement service business) may be compensated for services that are actual, necessary and distinct from the primary services provided by the real estate broker or agent, if the services are not nominal, and the payment is not a duplicative charge. ( See 24 CFR 3500.14(b), (c), (g)(1), and (g)(3)).

On June 25, 2010 (75 FR 36271), HUD issued an interpretive rule on the propriety under Section 8 of RESPA (12 U.S.C. 2607) of payments to real estate brokers and agents from home warranty companies (HWCs). The interpretive rule concluded:

(1) A payment by an HWC for marketing services performed by real estate brokers or agents on behalf of the HWC that are directed to particular homebuyers or sellers is an illegal kickback for a referral under section 8;

(2) Depending upon the facts of a particular case, an HWC may compensate a real estate broker or agent for services when those services are actual, necessary and distinct from the primary services provided by the real estate broker or agent, and when those additional services are not nominal and are not services for which there is a duplicative charge; and

(3) The amount of compensation from the HWC that is permitted under section 8 for such additional services must be reasonably related to the value of those services and not include compensation for referrals of business.

HUD received 72 comments in response to publication of the interpretive rule. HUD reviewed all of the comments, and appreciates the input and information provided by the commenters. Some commenters supported the interpretive rule and others did not. HUD found that the comments that were not supportive of its interpretation did not present concerns or information that warrant any changes to the interpretive rule. HUD, however, has identified and is responding to seven specific questions to provide additional guidance relating to matters covered in the interpretive rule and the comments.

1. Question: Is a home warranty company's flat fee payment ( e.g., monthly or annual payment) to a real estate broker or agent for marketing a home warranty product directly to particular homebuyers or sellers a permissible payment under section 8 of RESPA?

HUD Response: No, as provided in the interpretive rule, payments for marketing services directed to particular homebuyers or sellers are considered to be payments for affirmatively influencing their choice of settlement service providers and would therefore violate section 8 of RESPA as an illegal kickback for a referral, regardless of whether the payment is made to the broker or agent on a “per transaction” or a “flat fee” basis.

2. Question: Is the list of items in footnote 2 of the interpretive rule an exhaustive list of the services that a real estate broker or agent can be legally compensated for by a home warranty company under section 8 of RESPA?

HUD Response: No, the footnote itself begins with the introduction, “For example”. The list in the footnote is not exhaustive but exemplary of services that, in a particular case, may be compensable. However, as discussed in the interpretive rule, to be compensable the services must be services that are “actual, necessary and distinct from the primary services provided by the real estate broker or agent, that are not nominal, and for which duplicative fees are not charged” ( see fn.1 of the interpretive rule). Referrals of settlement service business are not compensable services. Therefore, payments made for “services” that were fabricated to disguise a payment to a real estate broker or agent for referrals and are not, in fact, “necessary” would be illegal under section 8 of RESPA.

3. Question: What is meant by the statement in the interpretive rule that evidence in support of a determination that compensable services have been performed by a real estate broker or agent may include: “The real estate broker or agent is by contract the legal agent of the HWC, and the HWC assumes responsibility for any representations made by the broker or agent about the warranty product.”

HUD Response: While not conclusive, the fact that a home warranty company is willing to be legally committed by the work and representations of a real estate broker or agent who is compensated by the HWC for performing services is one indicator that those services provided are “actual, necessary and distinct” and not nominal—i.e., that actual work is being performed by the real estate broker or agent for which the home warranty company is willing to assume liability. Specifically, such a legal relationship indicates that the HWC has worked with the real estate broker or agent closely enough to understand the value of the services performed by the broker or agent, and to be confident enough of the broker's or agent's services and representations, that the HWC is willing to take responsibility for those services and representations. Conversely however, if in a contract with a consumer, for example, the HWC disclaims liability for acts and representations of the real estate broker or agent in connection with the home warranty, this may indicate that no actual services of value have been performed by the real estate broker or agent.

4. Question: Why is it a relevant factor in analyzing a potential section 8 violation that a home warranty company's payment to a real estate broker or agent was made under an exclusive-representation arrangement?

HUD Response: Section 8 of RESPA prohibits payments for referrals and unearned fees. Stated another way, referrals are not compensable services under section 8. See 24 CFR 3500.14(b). HUD's interpretive rule states that, in initially evaluating whether a payment from an HWC to a real estate broker or agent is a violation of section 8, HUD may look at whether the payment is tied to an arrangement that prohibits the broker or agent from receiving from a competitor comparable payment for comparable actual services. In other words, such an exclusive-representation arrangement between the HWC and the real estate broker or agent is evidence of an unlawful-payment-for-referral arrangement whereby the real estate broker or agent is only being paid for steering customers exclusively to the HWC and its products. However, as it is further noted in the interpretive rule, if it is determined that the HWC's payment is only for compensable services, the existence of an exclusive-representation arrangement would be permissible under section 8.

5. Question: Does the interpretive rule prohibit payments from an HWC to real estate brokers or agents for general advertising services performed by the brokers or agents on behalf of the HWC?

HUD Response: No. The interpretive rule specifically prohibits compensation for marketing performed by a real estate broker or agent on behalf of an HWC when the marketing is directed to selling the HWC's home warranty product to particular homebuyers or sellers. HUD would evaluate the permissibility of compensation provided by an HWC to real estate brokers or agents for other advertising by applying the definition of “referral” in § 3500.14(f) of HUD's RESPA regulations. For example, a reasonable payment for an advertisement by an HWC in a real estate broker's or agent's publication or on the broker's or agent's website would not, in and of itself, be a payment for a referral under RESPA. If the marketing services for which the HWC is paying the real estate broker or agent are services directed to a homebuyer or seller that have the effect of “affirmatively influencing” the selection by the homebuyer or seller of the HWC's home warranty product in connection with the real estate settlement, then those marketing services would be subject to RESPA's prohibitions on referral payments.

6. Question: Is a home warranty always considered to be a “settlement service” for purposes of RESPA coverage?

HUD Response: No. RESPA's kickback and referral fee prohibitions are applicable in the context of “settlement services”, a term that is defined broadly under RESPA and HUD's RESPA regulations. RESPA defines “settlement services” to include “any service provided in connection with a real estate settlement” and provides a nonexclusive listing of such services (12 U.S.C. 2602(3)). In its regulations HUD has long defined “settlement service” to include “any service provided in connection with a prospective or actual settlement * * *” (24 CFR 3500.2). As noted above and in the interpretive rule, “homeowner's warranties” have been specifically included in HUD's definition of “settlement service” since 1992 (24 CFR 3500.2(11)). Therefore, when a home warranty is “provided in connection with a prospective or actual settlement”, it is a “settlement service” under HUD's regulatory interpretation of RESPA.

In determining whether services involving a home warranty are provided in connection with a prospective or actual settlement, HUD would consider, among other things: (i) Whether the charge for the home warranty is paid out of the proceeds at the settlement; and (ii) if the charge is not paid at settlement, whether the timing of the purchase of and payment for the home warranty indicates that the purchase is so removed from the settlement that it is not provided “in connection with” a settlement within the meaning of RESPA and HUD's regulations. Items paid in connection with a RESPA-covered transaction, of course, may be paid and disclosed on the HUD-1/1A settlement statement as paid outside of closing (P.O.C.) or through the accounting at settlement.

7. Question: Does the interpretive rule apply to situations beyond home warranty company payments to real estate brokers and agents, for example to payments by other settlement service providers to real estate brokers and agents?

HUD Response: The interpretive rule is specifically directed to home warranty company payments to real estate brokers and agents. However, the analysis in the interpretive rule is based on an interpretation of the RESPA statute and HUD's existing regulations, which analysis may be applicable to payments made by other settlement service providers to real estate brokers or agents.

Again, HUD appreciates the input and information provided by the members of the public and representatives of industry who responded to HUD's solicitation of public comment on the June 25, 2010, interpretive rule. After consideration of the comments, HUD confirms its June 25, 2010, interpretation of certain provisions of RESPA as applied to the payment of fees to real estate brokers and agents by home warranty companies. The interpretive rule therefore stands without change.

Finally, some commenters asked whether the interpretive rule has prospective or retroactive effect. An interpretive rule does not change existing law. As noted in the concluding paragraph of the rule, the interpretive rule represents HUD's interpretation of its existing regulations. This interpretive rule, therefore, does not constitute a change in HUD's interpretation of RESPA or the RESPA regulations, but is an articulation of HUD's interpretation of RESPA and the implementing regulations that specifically applies to home warranty company payments to real estate brokers and agents.

Pension Benefit Guaranty Corporation (PBGC) administers the pension plan termination insurance program under Title IV of the Employee Retirement Income Security Act of 1974 (ERISA). PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) sets forth (in subpart B) the methods for valuing plan benefits of terminating single-employer plans covered under Title IV. Guaranteed benefits and benefit liabilities under a plan that is undergoing a distress termination must be valued in accordance with subpart B of part 4044. In addition, when PBGC terminates an underfunded plan involuntarily pursuant to ERISA section 4042(a), it uses the subpart B valuation rules to determine the amount of the plan's underfunding.

Under § 4044.51(b) of the asset allocation regulation, early retirement benefits are valued based on the annuity starting date, if a retirement date has been selected, or the expected retirement age, if the annuity starting date is not known on the valuation date. Sections 4044.55 through 4044.57 set forth rules for determining the expected retirement ages for plan participants entitled to early retirement benefits. Appendix D of part 4044 contains tables to be used in determining the expected early retirement ages.

Table I in appendix D (Selection of Retirement Rate Category) is used to determine whether a participant has a low, medium, or high probability of retiring early. The determination is based on the year a participant would reach “unreduced retirement age” ( i.e., the earlier of the normal retirement age or the age at which an unreduced benefit is first payable) and the participant's monthly benefit at unreduced retirement age. The table applies only to plans with valuation dates in the current year and is updated annually by the PBGC to reflect changes in the cost of living, etc.

Tables II-A, II-B, and II-C (Expected Retirement Ages for Individuals in the Low, Medium, and High Categories respectively) are used to determine the expected retirement age after the probability of early retirement has been determined using Table I. These tables establish, by probability category, the expected retirement age based on both the earliest age a participant could retire under the plan and the unreduced retirement age. This expected retirement age is used to compute the value of the early retirement benefit and, thus, the total value of benefits under the plan.

This document amends appendix D to replace Table I-10 with Table I-11 in order to provide an updated correlation, appropriate for calendar year 2011, between the amount of a participant's benefit and the probability that the participant will elect early retirement. Table I-11 will be used to value benefits in plans with valuation dates during calendar year 2011.

PBGC has determined that notice of and public comment on this rule are impracticable and contrary to the public interest. Plan administrators need to be able to estimate accurately the value of plan benefits as early as possible before initiating the termination process. For that purpose, if a plan has a valuation date in 2011, the plan administrator needs the updated table being promulgated in this rule. Accordingly, the public interest is best served by issuing this table expeditiously, without an opportunity for notice and comment, to allow as much time as possible to estimate the value of plan benefits with the proper table for plans with valuation dates in early 2011.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this regulation, the Regulatory Flexibility Act of 1980 does not apply (5 U.S.C. 601(2)).

Section 118 of the Copyright Act, title 17 of the United States Code, creates a compulsory license for the use of published nondramatic musical works and published pictorial, graphic, and sculptural works in connection with noncommercial broadcasting. Terms and rates for this compulsory license, applicable to parties who are not subject to privately negotiated licenses, are published in 37 CFR parts 253 and 381.

Final regulations governing the terms and rates of copyright royalty payments with respect to certain uses by public broadcasting entities of published nondramatic musical works, and published pictorial, graphic, and sculptural works for the license period beginning January 1, 2008, and ending December 31, 2012, were published in the Federal Register on November 30, 2007. See 72 FR 67646. Pursuant to these regulations, on or before December 1 of each year the Judges shall publish a notice of the change in the cost of living as determined by the Consumer Price Index (all urban consumers, all items (“CPI-U”)) during the period from the most recent index published prior to the previous notice, to the most recent index published prior to December 1 of that year. See 37 CFR 381.10(a). The regulations also require that the Judges publish a revised schedule of rates for the public performance of musical compositions in the ASCAP, BMI, and SESAC repertories by public broadcasting entities licensed to colleges and universities, reflecting the change in the CPI-U. 37 CFR 381.10(a)(requiring publication of a revised schedule of rates for 37 CFR 381.5). Accordingly, the Judges are hereby announcing the change in the CPI-U and applying the annual COLA to the rates set out in 37 CFR 381.5(c).

The change in the cost of living as determined by the CPI-U during the period from the most recent index published before December 1, 2009, to the most recent index published before December 1, 2010, is 1.2%. 1 Rounding to the nearest dollar, 2 the royalty rates for the performance of published nondramatic musical compositions in the repertories of ASCAP, BMI, and SESAC are $301, $301, and $121, respectively.

On September 26, 2006, with a clarifying revision submitted on November 6, 2006, GA EPD submitted proposed SIP revisions to EPA for review and approval into the Georgia SIP. The September 26, 2006, submittal included multiple modifications to Georgia's Air Quality Rules found at Chapter 391-3-1. Previously, EPA took action on the majority of the September 26, 2006, submittal in an action published in the Federal Register on February 9, 2010, which approved revisions to rules 391-3-1-.01(llll), 391-3-1-.01(nnnn), 391-3-1-.-02(2)(d), 391-3-1-.02(2)(tt), 391-3-1-.02(2)(yy), 391-3-1-.02(2)(rrr), 391-3-1-.02(4), 391-3-1-.02(5), 391-3-1-.03(6)(b), 391-3-1-.03(6)(j), 391-3-1-.03(11)(b)3(i), 391-3-1-.03(11)(b)5(i), and 391-3-1-.05. 75 FR 6309. In today's action, EPA is approving only the portion of the September 26, 2006, submittal (as clarified in a November 6, 2006, submittal) that relates to revisions to Georgia's Stage II gasoline vapor recovery rule at 391-3-1-.02(2)(zz).

Action on the remaining portions of the September 26, 2006, SIP revision is still under consideration, and will be addressed in separate actions. EPA is not acting on revisions to rules 391-3-1-.01(qqqq), 391-3-1-.02(2)(mmm), 391-3-1-.02(6)(a), 391-3-1-.03(6)(g), and 391-3-1-.03(6)(i) at this time. EPA is also not taking action on revisions to rule 391-3-1-02(2)(ooo), as Georgia has submitted a revised version of this rule. Additionally, EPA is not acting on revisions to rules 391-3-1-.02(ppp), 391-3-1-.02(8)(a), 391-3-1-.02(9), 391-3-1-.03(9), 391-3-1-.03(10)(b)2, 391-3-1-.03(10)(e)(6), and 391-3-1-.03(10)(g)2, as they are not part of the Federally-approved SIP.

Effective January 6, 1992, 13 counties in and around Atlanta, Georgia (Cherokee, Clayton, Cobb, Coweta, Dekalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding and Rockdale) were designated “serious” nonattainment for the 1-hour ozone NAAQS (hereafter referred to as the “Atlanta 1-Hour Area”). 56 FR 56694. The original attainment date for the Atlanta 1-Hour Area to attain the 1-hour ozone NAAQS was no later than November 15, 1999. However, the Atlanta 1-Hour Area did not attain the 1-hour ozone NAAQS by that time. Because Atlanta failed to attain the 1-hour ozone NAAQS by November 15, 1999, EPA issued a final rulemaking action on September 26, 2003 (68 FR 55469) determining that, by operation of law, the Atlanta 1-Hour Area was being reclassified as a severe ozone nonattainment area effective January 1, 2004. Subsequently, effective June 14, 2005, the Atlanta 1-Hour Area was redesignated to attainment for the 1-hour ozone NAAQS. 70 FR 34660.

Before being redesignated to attainment for the 1-hour ozone NAAQS however, effective June 15, 2004, the original 13 counties, and an additional 7 surrounding counties (Bartow, Barrow, Carroll, Hall, Newton, Spalding, and Walton), 2 were designated as a “marginal” ozone nonattainment for the 1997 8-hour ozone NAAQS (hereafter referred to as the “Atlanta 1997 8-Hour Ozone Area”). 69 FR 23858. The Atlanta 1997 8-Hour Ozone Area was initially classified “marginal” based on a design value of 0.091 parts per million (ppm) with an attainment date of June 15, 2007. The Atlanta 1997 8-Hour Ozone Area failed to attain the 1997 8-hour ozone NAAQS by the June 15, 2007, deadline. Subsequently, on March 6, 2008, the Atlanta 1997 8-Hour Ozone Area was reclassified from a “marginal” to “moderate” 8-hour ozone nonattainment area. The Atlanta 1997 8-Hour Ozone Area remains designated as moderate ozone nonattainment area, and has a 2007-2009 design value of 0.087 ppm. 3

Effective May 27, 2008, EPA strengthened the 8-hour ozone NAAQS by revising it to 0.075 ppm. 73 FR 16436. Consistent with a directive of the new Administration regarding the review of new and pending regulations, the Administrator reviewed a number of actions that were taken by the previous Administration. 74 FR 4435. The 2008 8-hour ozone NAAQS final rule was included in this review. Based on EPA's reconsideration, on January 19, 2010, EPA proposed to set different primary and secondary ozone NAAQS than those set in 2008, to provide requisite protection of public health and welfare, respectively. 75 FR 2938. Initially, EPA expected these NAAQS to become final by August 31, 2010, but now expects them to be finalized later in 2010. Today's rulemaking does not address requirements for the revised or reconsidered 2008 or proposed 2010 8-hour ozone NAAQS.

Georgia's Stage II gasoline vapor recovery rule prohibits any person from constructing or reconstructing a gasoline dispensing facility unless the “facility is equipped and operating with a vapor recovery system to recover the displacement vapors from the vehicle's gasoline storage tank.” Rule 391-3-1-.02(2)(zz)(1). The vapor recovery system must have a demonstrated 95 percent by weight or greater volatile organic compound (VOC) control efficiency, as demonstrated by California Air Resources Board (CARB), or equivalent test procedures and methods. Rule 391-3-1-.02(2)(zz)(3).

Today's action approves revisions to Georgia's Stage II gasoline vapor recovery rule at 391-3-1-.02(2)(zz). This rule was initially developed by the State of Georgia, and submitted to EPA for approval to comply with Section 182 of the CAA. Section 182(b)(3) of the CAA calls for States with “moderate” ozone nonattainment areas to submit revisions to their SIPs requiring all owners or operators of gasoline dispensing systems to install and operate a system for gasoline vapor recover of emissions from the fueling of motor vehicles. 42 U.S.C. 7511a(b)(3). Sections 182(c), 182(d) and 182(e) of the CAA apply this requirement to States with “serious,” “severe” and “extreme” ozone nonattainment areas as well. 42 U.S.C. § 7511a(c), (d), and (e). Accordingly, as a serious ozone nonattainment area, Georgia submitted its initial Stage II gasoline vapor recovery rule at 391-3-1-.02(2)(zz) on November 13, 1992, to EPA for initial approval. EPA approved Georgia's gasoline vapor rule into the Georgia SIP on February 2, 1996. 61 FR 3819.

Generally speaking, the scheme set up by the CAA anticipates that ORVR may replace Stage II systems. VOC emissions, which are precursors of ozone, are emitted by fueling vehicles but these emissions are mitigated by both Stage II vapor recovery systems and by use of vehicles equipped with ORVR. Both ORVR and Stage II systems operate to control VOC emissions during motor vehicle fueling. Stage II vapor recovery systems are installed at the gasoline dispensing facility, while ORVR is installed within the motor vehicle itself.

The Stage II vapor recovery provisions of CAA section 182(b)(3) “shall not apply” to “moderate” ozone nonattainment areas after EPA promulgates ORVR standards. 42 U.S.C. 7521(a)(6). According to 40 CFR 51.905(a)(1)(i), Atlanta remains subject to the obligation to implement the applicable requirements as defined in 51.900(f) which include Stage II Vapor Recovery (51.900(f)(5)), except as provided in 40 CFR 51.905(b). 40 CFR 51.905(b) requires that a State remain subject to Stage II Vapor Recovery (and other 51.900(f) requirements) until the area attains the 8-hour NAAQS. After the area attains the 8-hour NAAQS, the State may request such obligations be shifted to contingency measures, consistent with sections 110(l) and 193 of the CAA; however, the State cannot remove the obligations from the SIP. As stated earlier, since Georgia is not “removing the obligation” but is instead revising the Stage II requirements for a certain portion of the fleet, as explained in this direct final rule, this revision is consistent with 40 CFR 51.905(a)(1)(i).

On April 6, 1994, EPA issued final regulations requiring the phase-in of ORVR emissions control systems on new motor vehicles, requiring a minimum of 95 percent evaporative emission capture efficiency. 59 FR 16262. For ozone nonattainment areas classified as “serious” or above, the CAA allows EPA to revise or waive the Section 182(b)(3) Stage II gasoline vapor recovery rules, after determining ORVR emissions control systems are in widespread use throughout the motor vehicle fleet. 42 U.S.C. § 7521(a)(6). This determination of widespread use has not yet been made for the entire fleet; however, EPA has issued a guidance on December 12, 2006, entitled Removal of Stage II Vapor Recovery in Situations Where Widespread Use of Onboard Refueling Vapor Recovery is Demonstrated. More discussion on how this guidance relates to today's action can be found in section II.B.3 of this rulemaking. While this action is supported by EPA's policies regarding ORVR, the revision must also meet the requirements of CAA section 110(l). See below for more information on CAA section 110(1) and its relation to Georgia's SIP revision.

EPA's primary consideration for determining the approvability of Georgia's request is whether this requested action complies with section 110(l) of the CAA which states:

On September 26, 2006, GA EPD submitted a proposed SIP revision to EPA for approval into the Georgia SIP. A clarifying revision was submitted on November 6, 2006. The first change being proposed for approval today is to Georgia Air Quality Rule 391-3-1-.02(2)(zz)3(i)(1). If certain conditions are met, this change will allow certification of Stage II equipment using certification procedures other than the CARB procedures, as previously required. Today, EPA is also taking action to approve the component of the September 26, 2006, submittal (as clarified in the November 6, 2006, submittal) that modifies Georgia Air Quality Rule, Chapter 391-3-1-.02, paragraph (2) “Emission Limitations and Standards,” subparagraph (zz) “Gasoline Dispensing Facilities—Stage II.” As explained above, this rule was initially approved by EPA into the Georgia SIP on February 2, 1996, and requires owners or operators of gasoline dispensing systems to install and operate Stage II gasoline vapor recovery systems to recover the vapors from the fueling of motor vehicles. The current Georgia Air Quality Rule at 391-3-1-.02(2)(zz)2, exempts facilities used exclusively for the re-fueling of vehicles equipped with ORVR equipment. This exemption is being expanded today to cover initial fueling as well. Now, facilities used exclusively for the initial fueling and/or re-fueling of vehicles equipped with ORVR equipment are exempt. EPA's analysis of these two changes is discussed below.

As previously mentioned in this rulemaking, States were required to adopt Stage II rules for all areas classified as “moderate” or worse under section 182(b)(3) of the CAA. However, section 202(a)(6) of the CAA states that “the requirements of section 182(b)(3) (relating to Stage II gasoline vapor recovery) for areas classified under section 181 as moderate for ozone shall not apply after promulgation of such standards.” ORVR regulations were issued by EPA on April 6, 1994. See 59 FR 16262, 40 CFR 86.001 and 40 CFR 86.098). As a result, the CAA no longer requires moderate areas to impose Stage II controls under section 182(b)(3), and such areas may seek SIP revisions to remove such requirements from their SIP, subject to section 110(l) of the Act.

Under CAA section 110(l), Stage II vapor recovery programs cannot be revised or removed unless it is demonstrated that revision or removal of such program from the SIP would not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement under the CAA. 42 U.S.C. 7410(l). While Georgia's September 26, 2006, and November 6, 2006, SIP revisions are not requesting the withdrawal of its Stage II rule for the Atlanta Area, these SIP revisions are requesting revisions to Georgia's Stage II requirements, and thus these revisions must be shown to satisfy 110(l) of the CAA.

Georgia's September 26, 2006, revision changes Georgia Air Quality Rule 391-3-1-.02(2)(zz)(3) to allow mixing of equipment components under separate, non-CARB certification procedures when supported by the manufacturer or independent third-party certification that the configuration meets or exceeds the applicable performance standards and has received prior written approval by GA EPD. The State has requested the rule change to allow the maintenance of existing Stage II systems with certified components by a third party other than CARB. This change is needed because the CARB discontinued its certification of Stage II components upon implementation of a new vapor recovery system in California. Many components of California's new vapor recovery system are not compatible with Stage II systems. Stage II components that need replacing may not be able to be replaced with components from California's new vapor recovery system. Since CARB discontinued certification of Stage II components, it takes a third party or manufacturer to test and verify Stage II systems. This rule change will enable existing Stage II systems in Georgia to be maintained and have components replaced as needed, without having to convert the entire systems from Stage II to California's new vapor recovery system. The change requires Stage II components to continue to be certified, but allows certification through a third party, or through the manufacturer, upon prior written approval by GA EPD. This rule change is approvable because it merely allows for third party certification other than CARB and no emissions changes are expected to result from this revision.

The revisions being approved today exclude from Georgia's Stage II vapor recovery program the initial fueling of vehicles equipped with ORVR, stating “[t]he requirements of this subsection shall not apply to facilities * * * used exclusively for the initial fueling and/or re-fueling of vehicles equipped with onboard refueling vapor recovery (ORVR) equipment.” Georgia Air Quality Rule 391-3-1-.02(2)(zz)(1) (underlined text is being added to current rule). Georgia has confirmed that 100 percent of vehicles contemplated by their rule for initial refueling would be equipped with ORVR.

This SIP revision is approvable because all the vehicles whose initial fueling is being excluded from Stage II vapor recovery rules are equipped with ORVR, an equivalent vapor recovery system. Both Stage II and ORVR systems must demonstrate a 95 percent or greater VOC control efficiency; thus, there will be no increase in emissions as a result of these SIP revisions. Therefore, these revisions will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement under the CAA.

These revisions are consistent with EPA guidance set forth in a December 12, 2006 memorandum from Stephen D. Page entitled Removal of Stage II Vapor Recovery in Situations Where Widespread Use of Onboard Refueling Vapor Recovery is Demonstrated (Page Memorandum). In relevant part, the Page Memorandum states that if a SIP revision demonstrates that 95 percent of the new vehicles fueled at an automobile assembly plant are equipped with ORVR, and that this level of ORVR use would not decrease, then EPA can determine that widespread use of ORVR has been achieved for the fleet of motor vehicles that are fueled at that facility. Page Memorandum, page 2. The December 12, 2006, memorandum also explains that “any EPA SIP approval would also be subject to the CAA section 110(l) requirement that the revision not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other requirement of the CAA.” December 12, 2006, memorandum, page 3. As explained above, for ozone nonattainment areas “worse” than “moderate,” the CAA allows EPA to revise or waive the Section 182(b)(3) Stage II gasoline vapor recovery rules, after determining ORVR emissions control systems are in widespread use throughout the motor vehicle fleet. 42 U.S.C. 7521(a)(6).

Georgia revised its Stage II vapor recovery rules to exclude initial fueling of motor vehicles equipped with ORVR. Under Georgia's changes, the only vehicles excluded from Stage II vapor recovery rules are vehicles equipped with ORVR. Because 100 percent of the vehicles subject to Georgia's rule changes, the criteria for widespread use for this fleet of vehicles is achieved. Georgia's rule changes for Stage II are consistent with the CAA, implementing regulations, guidance, including the Page Memorandum, and EPA's action in other similar situations. See 74 FR 26103 (approving removal of Stage II vapor control requirements for new and upgraded gasoline dispensing facilities in southeast Florida area); and 71 FR 52464 (approving removal of Stage II vapor recovery systems at Ford's Chicago Assembly Plant).

EPA is taking direct final action to approve into the Georgia SIP, the aforementioned revisions to Georgia's Stage II vapor recovery rule at 391-3-1-.02(2)(zz), submitted by GA EPD on September 26, 2006, and November 6, 2006. Today's revisions exclude initial fueling of motor vehicles equipped with ORVR from the Stage II vapor recovery rules; and allows mixing of Stage II equipment components under separate, non-CARB certification procedures when supported by the manufacturer or independent third-party certification that the configuration meets or exceeds the applicable performance standards and has received prior written approval by GA EPD. These revisions are consistent with EPA guidance and the CAA.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective January 31, 2011 without further notice unless the Agency receives adverse comments by January 3, 2011.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on January 31, 2011 and no further action will be taken on the proposed rule.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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 action 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).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 31, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.gpoaccess.gov/ecfr.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2008-0095 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before January 31, 2011. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2008-0095, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

• Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of June 23, 2010 (75 FR 35801) (FRL-8831-3), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP 0E7701) by Ag-Chem Consulting, 12208 Quinque Lane, Clifton, VA 21024, on behalf of LG Life Science, 910 Sylvan Ave., Englewood Cliffs, NJ 07632. The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of tristyrylphenol ethoxylate (CAS Reg. No. 99734-09-5) when used as an inert ingredient as a surfactant with a maximum of 10 percent by weight in pesticide formulations applied to food areas and food contact surfaces in food service and food handling establishments. That notice referenced a summary of the petition prepared by Ag-Chem Consulting, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has modified the exemption requested by limiting tristyrylphenol ethoxylate (CAS Reg. No. 99734-09-5) to a maximum of 15 percent by weight in pesticide formulations. This limitation is based on the Agency's risk assessment which can be found at http://www.regulations.gov in document “PC Code: 800900; Decision Document for Pesticide Petition 0E7701; poly(oxy-1,2-ethanediyl), α-[tris(1-phenylethyl)phenyl]-ω-hydroxy-, (CAS Reg. No. 99734-09-5) for use post-harvest under 40 CFR 180.910 as an inert ingredient as a surfactant with a maximum of 15 percent by weight in pesticide formulations” in docket ID number EPA-HQ-OPP-2008-0095.

It should be noted that there are other tolerance exemptions under 40 CFR 180.920 and 40 CFR 180.1288 that apply to this tristyrylphenol ethoxylate compound (CAS Reg. No. 99734-09-5), as well as, other closely related tristyrylphenol ethoxylate chemicals. The Agency believes that these existing exemptions could be consolidated at a later date by establishing a pre- and post-harvest exemption under 40 CFR 180.910 for these tristyrylphenol ethoxylate compounds since these chemicals share a common chemical structure and are members of the same chemical class.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with section 408(c)(2)(A) of FFDCA, and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for tristyrylphenol ethoxylate including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with tristyrylphenol ethoxylate follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by the tristyrylphenol ethoxylates as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in the final rule published in the Federal Register of March 25, 2009 (74 FR 12621) (FRL-8404-7). As stated in that document, the available toxicity database for the tristyrylphenol ethoxylates consists of studies on some of the tristyrylphenol ethoxylate chemicals, such as CAS Reg. Nos. 90093-37-1 and 119432-41-6), and guideline studies on an analog chemical (CAS Reg. No. 105362-40-1). The studies on the tristyrylphenol ethoxylate chemicals and analog chemicals were considered appropriate to evaluate the toxicity of the tristyrylphenol ethoxylates because these chemicals share a common chemical structure and are members of the same chemical class. The tristyrylphenol ethoxylates and analog chemicals share a close structural similarity and same functional groups with the only difference being in the associated counterions. Therefore, the toxicity of these chemicals is expected to be similar. The Agency has determined that these data are appropriate and adequate to characterize the toxicity of the tristyrylphenol ethoxylates.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints used for human risk assessment is discussed in Unit IV of the final rule published in the Federal Register of March 25, 2009 (74 FR 12621) (FRL-8404-7).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tristyrylphenol ethoxylate, EPA considered exposure under the proposed exemption from the requirement of a tolerance as well as the other existing exemptions from tolerance for other closely related tristyrylphenol ethoxylate chemicals. EPA assessed dietary exposures from tristyrylphenol ethoxylate in food as follows:

i. Acute exposure. No adverse effects attributable to a single exposure of tristyrylphenol ethoxylate were seen in the toxicity databases. Therefore, an acute dietary risk assessment for tristyrylphenol ethoxylate is not necessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used food consumption information from the United States Department of Agriculture (USDA) [1994-1996 and 1998] Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, no residue data were submitted for tristyrylphenol ethoxylate. In the absence of specific residue data, EPA has developed an approach which uses surrogate information to derive upper bound exposure estimates for the subject inert ingredient. Upper bound exposure estimates are based on the highest tolerance for a given commodity from a list of high-use insecticides, herbicides, and fungicides. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts.” (D361707, S. Piper, 2/25/09) and can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

In the dietary exposure assessment, the Agency assumed that the residue level of the inert ingredient would be no higher than the highest tolerance for a given commodity. Implicit in this assumption is that there would be similar rates of degradation (if any) between the active and inert ingredient and that the concentration of inert ingredient in the scenarios leading to these highest of tolerances would be no higher than the concentration of the active ingredient.

The Agency believes the assumptions used to estimate dietary exposures lead to an extremely conservative assessment of dietary risk due to a series of compounded conservatisms. First, assuming that the level of residue for an inert ingredient is equal to the level of residue for the active ingredient will overstate exposure. The concentration of active ingredient in agricultural products is generally at least 50 percent of the product and often can be much higher. Further, pesticide products rarely have a single inert ingredient; rather there is generally a combination of different inert ingredients used which additionally reduces the concentration of any single inert ingredient in the pesticide product in relation to that of the active ingredient. In the case of tristyrylphenol ethoxylate, EPA made a specific adjustment to the dietary exposure assessment to account for the use limitations of the amount of tristyrylphenol ethoxylate that may be in formulations (no more than 15 percent by weight in pesticide) and assumed that tristyrylphenol ethoxylate is present at the maximum limitations rather than at equal quantities with the active ingredient. In addition, in a previous risk assessment (2009) which can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2009-0095, the Agency concluded that residues following post harvest application to citrus crops would not be likely to exceed three times the residue attained following pre-harvest application. Therefore, the Agency applied a correction factor of 3x to the citrus crop group to account for the potentially higher residues from post-harvest treatment of this use.

Second, the conservatism of this methodology is compounded by EPA's decision to assume that, for each commodity, the active ingredient which will serve as a guide to the potential level of inert ingredient residues is the active ingredient with the highest tolerance level. This assumption overstates residue values because it would be highly unlikely, given the high number of inert ingredients, that a single inert ingredient or class of ingredients would be present at the level of the active ingredient in the highest tolerance for every commodity. Finally, a third compounding conservatism is EPA's assumption that all foods contain the inert ingredient at the highest tolerance level. In other words, EPA assumed 100 percent of all foods are treated with the inert ingredient at the rate and manner necessary to produce the highest residue legally possible for an active ingredient. In summary, EPA chose a very conservative method for estimating what level of inert residue could be on food, then used this methodology to choose the highest possible residue that could be found on food and assumed that all food contained this residue. No consideration was given to potential degradation between harvest and consumption even though monitoring data shows that tolerance level residues are typically one to two orders of magnitude higher than actual residues in food when distributed in commerce.

Accordingly, although sufficient information to quantify actual residue levels in food is not available, the compounding of these conservative assumptions will lead to a significant exaggeration of actual exposures. EPA does not believe that this approach underestimates exposure in the absence of residue data.

iii. Cancer. Considering the lack of mutagenicity, the lack of target organ toxicity in subchronic studies and known mode of action for the target organ toxicity, and the SAR predictions, the Agency concluded that carcinogenicity concerns are unlikely for the tristyrylphenol ethoxylate. Therefore, a cancer dietary exposure assessment was not performed.

iv. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for tristyrylphenol ethoxylate. Tolerance level residues and/or 100 percent CT were assumed for all food commodities.

2. Dietary exposure from drinking water. For the purpose of the screening level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for tristyrylphenol ethoxylate, a conservative drinking water concentration value of 100 ppb based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

Tristyrylphenol ethoxylate may be used as an inert ingredient in pesticide products that are registered for specific uses that may result in both outdoor and indoor residential exposures. In addition, tristyrylphenol ethoxylate may be used as an inert ingredient in pesticide formulations that are used in and around the home. Although dermal and inhalation exposures are possible from residential use of pesticide products containing this inert ingredient, negligible inhalation and dermal absorption is expected based on the molecular weight and the physicochemical properties of the compound. A screening level residential exposure and risk assessment was completed for products containing tristyrylphenol ethoxylate as an inert ingredient. The Agency conducted an assessment to represent worst-case residential exposure by assessing post application exposures and risks from tristyrylphenol ethoxylate in pesticide formulations (Outdoor Scenarios) and tristyrylphenol ethoxylate in disinfectant-type uses (Indoor Scenarios). Further details of this residential exposure and risk analysis can be found in the document (D364751) in docket ID number EPA-HQ-OPP-2008-0710.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found tristyrylphenol ethoxylate to share a common mechanism of toxicity with any other substances, and tristyrylphenol ethoxylate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that tristyrylphenol ethoxylate does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

2. EPA has sufficient data to assess the toxicity of the tristyrylphenol ethoxylates. The data presented in the assessment on the tristyrylphenol ethoxylates are adequate to characterize the expected behavior of the subject chemical. The primary toxicity appears to be to the kidney and thyroid in rats and liver in dogs. Because the kidney effects are the most sensitive endpoint, protective measures for kidney toxicity will be protective of any other long term effects. Further, EPA concluded that there is no need for the additional FQPA safety factor for use of subchronic toxicity for long term exposure assessment. The critical effect seen in the subchronic study (intratubular mineralization in the kidney) is believed to occur as a result of precipitation of a chemical based on its physicochemical properties. Precipitation of a chemical based on its physiochemical properties is a function primarily of dose level rather than duration of dosing. Thus, once the threshold for precipitation of the chemical is established (as it was in the subchronic dog study), this threshold level would be considered protective of any short or long term exposure. Therefore, the additional safety factor for the lack of long term studies is not warranted.

3. EPA concluded that there is no evidence of increased susceptibility to infants and children. The developmental toxicity study in which rats were administered (CAS Reg. No. 119432-41-6) resulted in a NOAEL of 300 mg/kg/day for maternal toxicity (based on reduced body weights and increase in liver weights and loose feces seen at the LOAEL of 1,000 mg/kg/day) and a NOAEL of 300 mg/kg/day for developmental toxicity based on increased skeletal variations (increased incidence of all unossified proximal phalanges of the hind limb seen at the LOAEL of 1,000 mg/kg/day). Fetal effects were seen only at the limit dose and in the presence of maternal toxicity.

4. No rabbit developmental study or reproductive toxicity studies are available for these chemicals, however, the developmental toxicity study in rats indicates no robust developmental toxicity at the limit dose and none of the reproductive parameters were affected in the rat developmental study at the limit dose of 1,000 mg/kg/day. This endpoint in the developmental study is considered conservative since the incidence of skeletal variations seen at 1,000 mg/kg/day was marginal.

5. There is no indication in the database that the tristyrylphenol ethoxylates are neurotoxic chemicals and there is no evidence of increased susceptibility. Therefore, there is no need for a developmental neurotoxicity study or the acute neurotoxicity and 90-day neurotoxicity studies.

6. No treatment related effects were observed on the thymus or spleen at very high doses, indicating a lack of immunotoxic effects. Therefore, a functional immunotoxicity test is not required at this time and no additional uncertainty factor is required because of the lack of a immunotoxicity study.

7. There are no residual uncertainties identified in the exposure databases. In the absence of actual exposure data on tristyrylphenol ethoxylates, a highly conservative dietary exposure assessment would not underestimate the risk to infants and children. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by the tristyrylphenol ethoxylates. Based on overall weight of evidence, the FQPA factor of 10X was reduced to 1X.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, tristyrylphenol ethoxylate is not expected to pose an acute risk.

2. Chronic risk. A chronic aggregate risk assessment takes into account exposure estimates from chronic dietary consumption of food and drinking water. Using the exposure assumptions discussed in this unit for chronic exposure and the use limitations of not more than 15 percent by weight in pesticide formulations, the chronic dietary exposure from food and water to tristyrylphenol ethoxylate is 13.5 percent of the cPAD for the U.S. population and 43.6 percent of the cPAD for children 1 to 2 years old, the most highly exposed population subgroup.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Tristyrylphenol ethoxylate is used as an inert ingredient in pesticide products that are currently registered for uses that could result in short-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to tristyrylphenol ethoxylate. Using the exposure assumptions described in this document, EPA has concluded that the combined short-term aggregated food, water, and residential exposures result in aggregate MOEs of 91 for both adult males and females respectively. Adult residential exposure combines high end dermal and inhalation handler exposure from indoor hand wiping with a high end post application dermal exposure from contact with treated lawns. The models assume high end application rates, and high end exposures representing worst case scenarios, as well as, assuming that the inert ingredients are used on all commodities and that 100 percent of crops are treated and that residues will be present for every consumed commodity (including meat, milk, poultry, and eggs) that is included in the Dietary Exposure Evaluation Model (DEEM TM ). Considering the extremely conservative nature of this screening level model the Agency concluded that this MOE is not of a concern. EPA has concluded that the combined short-term aggregated food, water, and residential exposures result in an aggregate MOE of 207 for children. Children's residential exposure includes total exposures associated with contact with treated lawns (dermal and hand-to-mouth exposures). As the level of concern is for MOEs that are lower than 100, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Tristyrylphenol ethoxylate is currently registered for uses that could result in intermediate-term residential exposure and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to tristyrylphenol ethoxylate. Using the exposure assumptions described in this document, EPA has concluded that the combined intermediate-term aggregated food, water, and residential exposures result in aggregate MOE of 869 for adult males and a MOE of 898 for adult females. Adult residential exposure includes high end post application dermal exposure from contact with treated lawns. EPA has concluded the combined intermediate-term aggregated food, water, and residential exposures result in an aggregate MOE of 218 for children. Children's residential exposure includes total exposures associated with contact with treated lawns (dermal and hand-to-mouth exposures). As the level of concern is for MOEs that are lower than 100, this MOE is not of concern.

5. Aggregate cancer risk for U.S. population. The Agency has not identified any concerns for carcinogenicity relating to the tristyrylphenol ethoxylate.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population or to infants and children from aggregate exposure to tristyrylphenol ethoxylate residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residue of tristyrylphenol ethoxylate in or on any food commodities. EPA is establishing a limitation on the amount of tristyrylphenol ethoxylate that may be used in pesticide formulations. That limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide for sale or distribution that contains greater than 15 percent of tristyrylphenol ethoxylate by weight in food use pesticide formulations.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for tristyrylphenol ethoxylate.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.910 for poly(oxy-1,2-ethanediyl), α-[tris(1-phenylethyl)phenyl]-ω-hydroxy-, (CAS Reg. No. 99734-09-5), when used post-harvest as an inert ingredient as a surfactant with a maximum of 15 percent by weight in pesticide formulations.

This final rule establishes an exemption from the requirement of a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report 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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.gpoaccess.gov/ecfr.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2010-0136 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before January 31, 2011. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2010-0136, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

• Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of March 24, 2010 (75 FR 14154) (FRL-8815-6), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 9E7564) by Bayer CropScience, 2 T.W. Alexander Drive, P.O. Box 12014, Research Triangle Park, North Carolina 27709. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide spiroxamine, (8-(1,1-dimethylethyl)-N-ethyl-N-propyl-1,4-dioxaspiro[4,5]decane-2-methanamine) and its metabolites containing the N-ethyl-N-propyl-1,2-dihydroxy-3-aminopropane moiety, calculated as parent equivalent, in or on artichoke, globe at 0.7 parts per million (ppm); asparagus at 0.05 ppm and vegetable, fruiting, group 8 at 1.2 ppm. That notice referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * *”

Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for spiroxamine including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with spiroxamine follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by spiroxamine as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Spiroxamine: Human Health Risk Assessment for Spiroxamine on Imported Artichoke, Asparagus and Fruiting Vegetables (Corp Group 8),” pp. 33-36 in docket ID number EPA-HQ-OPP-2010-0136.

Spiroxamine has low acute oral and inhalation toxicity and is not irritating to the eye. However, spiroxamine is a skin sensitizer when tested in guinea pigs and is a severe dermal irritant. Spiroxamine subchronic studies show the target organ of toxicity is the liver. These studies were characterized by slight to mild hepatotoxicity, with associated elevation in liver enzymes. Mucous membranes of the esophagus and forestomach were keratinized and hyperplastic as a result of the strong irritant properties of spiroxamine. Administration of spiroxamine in long-term studies in the dog resulted in hepatocytomegaly, cataracts, and liver discoloration. In the rat, it resulted in an increased mortality in females, decreased body weights and body weight gains in both sexes, and increased esophageal hyperkeratosis in both sexes, while in the mouse, chronic administration resulted in uterine nodules, hyperplasia in the adrenal gland of males, hyperkeratosis in the esophagus, forestomach, and tongue of females, and acanthosis in the pinnae and tails of females. Developmental effects in rats entailed delayed ossification which may be considered secondary to decreased body weight. Treatment-related developmental effects were not seen in rabbits. There was no evidence of increased susceptibility of the young animals following exposure to spiroxamine in any developmental toxicity studies in the data base. There was evidence of mild spiroxamine-induced neurotoxicity characterized by piloerection and slight to moderate gait incoordination, and functional observational battery (FOB) effects of decreased forelimb grip strength and foot splay in males in the acute neurotoxicity study. No neuropathology was seen in either the acute or subchronic toxicity studies in rats and no neurotoxicity was detected in the subchronic study. Spiroxamine has no carcinogenic potential, as indicated in both the rat and the mouse carcinogenicity studies. In addition, spiroxamine has no mutagenicity potential, based on several in vivo and in vitro studies.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for spiroxamine used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to spiroxamine, EPA considered exposure under the petitioned-for tolerances as well as all existing spiroxamine tolerances in 40 CFR 180.602. EPA assessed dietary exposures from spiroxamine in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for spiroxamine. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA assumed tolerance levels residues and 100 percent crop-treated (PCT) for the requested uses for spiroxamine.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, EPA assumed tolerance level residues and 100 PCT for the requested and currently registered uses of spiroxamine.

iii. Cancer. The Agency classified spiroxamine as “Not Likely to be Carcinogenic to Humans” based on the results of the carcinogenicity studies in rats and mice. Spiroxamine was determined to be non-mutagenic in bacteria, negative in an in vivo mammalian cytogenetics assay, and did not cause unscheduled DNA synthesis in mammalian cells in vitro. Accordingly, an exposure assessment to evaluate cancer risk is unnecessary.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for spiroxamine. Tolerance level residues and/or 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for spiroxamine in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of spiroxamine. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and SCI-GROW model, the estimated drinking water concentrations (EDWCs) of spiroxamine for acute exposures are estimated to be 19 parts per billion (ppb) for surface water and 0.035 ppb for ground water. For chronic exposures for non-cancer assessments are estimated to be 15 ppb for surface water and 0.035 ppb for ground water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Spiroxamine is not registered for any specific use patterns that would result in residential exposure.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found spiroxamine to share a common mechanism of toxicity with any other substances, and spiroxamine does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that spiroxamine does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. There is no concern for pre- or postnatal toxicity due to spiroxamine exposure. Delays in ossification, balanopreputial separation and vaginal patency were observed in the rat and may be secondary to decreased body weight. The latter two delays were resolved within the appropriate age range of puberty and no effects on reproductive function were observed in the multigeneration study in rats. Delayed balanopreputial separation was seen only in the presence of maternal toxicity and is not more severe than the maternal effects of decreased body weight and esophageal hyperkeratosis (due to irritation) seen at the common LOAEL of the multigeneration study. Delayed balanopreputial separation or vaginal patency does not cause concern for increased sensitivity to the young. There were no other treatment-related effects on fertility, viability or lactation indices or other reproductive parameters in either generation of the 2-generation reproductive toxicity study.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. Except for an immunotoxicity study, the toxicity database for spiroxamine is complete. In accordance with the revised part 158 an immunotoxicity study is required. Although a test-article related structural effect on the immune system was observed in the 90-day rat inhalation study in the form of thymic atrophy accompanied by decreased platelets and consequent increased clotting time, decreased lymphocytes and increased neutrophils, these lesions were seen only when inhalation was the route of administration and at the highest dose tested of 3,000 mg/m 3 (equivalent to 141 mg/kg/day) which exceeds the limit dose of 1 mg/L (1,000 mg/m 3 ). These route-specific lesions are likely secondary to local (respiratory system) irritation, inflammation and injury and not attributable to frank immunotoxicity. The Agency does not believe that conducting the immunotoxicity study will result in a dose less than the POD used in this risk assessment: NOAEL = 2.5 mg/kg/day based on liver toxicity at approximately 25 mg/kg/day. Hepatotoxicity was accompanied by decreased body weight and food consumption which were also considered secondary to local (digestive system) irritation resulting in test-article related hyperkeratosis of the tongue, esophagus and stomach.

ii. There is no concern for neurotoxicity with spiroxamine. Signs of neurotoxicity were reported in the acute neurotoxicity study only. Minimal clinical signs of neurotoxicity was observed only in males at the lower dose level. However, no evidence of neurotoxicity were observed at the highest dose level in the subchronic neurotoxicity study. Therefore, there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that spiroxamine results in increased susceptibility in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. Although storage and stability sampling and analysis dates have been requested for hops, there are no residual uncertainties identified in the exposure database because there is no indication of residue degradation during frozen storage. The acute and chronic dietary exposure assessments were performed based on 100 PCT and tolerance-level residues. Conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to spiroxamine in drinking water. Residential exposures are not expected. These assessments will not underestimate exposures and risks posed by spiroxamine.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-term, intermediate-term, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to spiroxamine will occupy 36% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to spiroxamine from food and water will utilize 40% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. There are no proposed or existing residential uses for spiroxamine. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of spiroxamine is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Spiroxamine is not registered for any use patterns that would result in residential exposure. Therefore, there is no potential for short-term risk to spiroxamine.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Spiroxamine is not registered for any use patterns that would result in intermediate-term residential exposure. Therefore, there is no potential for intermediate-term risk to spiroxamine.

5. Aggregate cancer risk for U.S. population. For spiroxamine, there were no observed evidence of carcinogenicity in two adequate rodent carcinogenicity studies, spiroxamine was determined to be non-mutagenic in bacteria, negative in an in vivo mammalian cytogenetics assay and did not cause unscheduled DNA synthesis in mammalian cells in vitro. Therefore, spiroxamine is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to spiroxamine residues.

Adequate enforcement methodology (gas chromatography/mass spectrometry (GC/MS) Bayer AG Method No. 00407) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; e-mail address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

There are no currently established Codex, Canadian, or Mexican maximum residue limits for spiroxamine on artichoke, asparagus and fruiting vegetables (crop group 8).

EPA is revising the tolerance expression to spiroxamine to clarify the chemical moieties that are covered by the tolerances and specify how compliance with the tolerances is to be measured. The revised tolerance expression makes clear that the tolerances cover residues of the spiroxamine, including its metabolites and degradates, but that compliance with the specified tolerance levels is to be determined by measuring only the sum of spiroxamine and its metabolites containing the N-ethyl-N-propyl-1,2-dihyroxy-3-amino propane moiety, calculated as the stoichiometric equivalent of spiroxamine, in or on the commodity. In addition, although it was not noted in the company petition, a request for import tolerances (only) was petitioned of the Agency for the uses in this final rule.

Therefore, tolerances are established for residues of spiroxamine, including its metabolites and degradates in or on artichoke, globe, import at 0.7 ppm; asparagus, import at 0.05 ppm and vegetables, fruiting (crop group 8), import at 1.2 ppm.

This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report 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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

This final rule is also accessible at http://www.gpoaccess.gov/fr.

On June 28, 2010, NMFS published a proposed rule in the Federal Register (75 FR 36619) that would modify the regulations at 50 CFR part 300, subpart D. Those regulations are issued under the authority of the South Pacific Tuna Act of 1988 (SPTA) (16 U.S.C. 973-973r), which was enacted to implement the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America and its annexes, schedules, and implementing agreements, as amended (“the Treaty”). The SPTA authorizes the Secretary of Commerce (Secretary), with the concurrence of the Secretary of State and after consultation with the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to issue regulations as may be necessary to carry out the purposes and objectives of the Treaty and the SPTA. The authority to issue regulations has been delegated to NMFS.

The Treaty governs the conduct of U.S. fishing vessel operations in the Treaty Area, as defined at 50 CFR 300.31, and which encompasses approximately 10 million square miles (26 million square kilometers) of the western and central Pacific Ocean (WCPO). The Treaty allows U.S. purse seine vessels access to a large portion of the WCPO by authorizing, and regulating through a licensing system, U.S. purse seine vessels operations within all or part of the exclusive economic zones (EEZs) of the 16 Pacific Island Parties (PIPs) to the Treaty. Licenses to operate in the Licensing Area under the Treaty are issued by the Pacific Islands Forum Fisheries Agency (FFA), based in Honiara, Solomon Islands, which acts as the Treaty Administrator on behalf of the PIPs. Licenses are issued on an annual basis, with the licensing period starting June 15th of each year. U.S. purse seine vessels licensed under the Treaty are used to target skipjack tuna and yellowfin tuna.

Currently, the Treaty allows for a maximum of 45 licenses to U.S. purse seine fishing vessels to fish in the Licensing Area of the Treaty. Of the 45 licenses, 5 are reserved for U.S. vessels engaged in “joint venture” arrangements designed to maximize the benefits generated for the PIPs. The Licensing Area comprises the entire Treaty Area, with the exception of areas subject to the jurisdiction of the United States and areas closed to fishing under the Treaty. It thus includes all or part of the EEZs of the following countries: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

Treaty licenses are issued by the FFA, but license applications for U.S. vessels are first submitted to, and must be approved by, NMFS, on behalf of the Secretary, before being forwarded to the FFA. Under current practices, NMFS ensures that applications are complete, and forwards them to the FFA on a first-come, first-served basis.

Under section 973g of the SPTA, the Secretary may establish a system of allocating Treaty licenses in the event more applications are received than there are licenses available. NMFS is now establishing such a system through this final rule. Section 973g of the SPTA also authorizes the Secretary to establish procedures for vessel operators (“operator” is defined under the SPTA to mean any person who is in charge of, directs, or controls a vessel, including the owner, charterer, and master) to request licenses from the Secretary to fish in the Treaty's Licensing Area. Such procedures have been established by NMFS, on behalf of the Secretary, at 50 CFR 300.32. In order to accommodate the allocation system that this final rule establishes, this rule also modifies the procedures used by applicants to request licenses along with the procedures used by NMFS to process those requests. The modifications to the procedures are designed in part to provide license holders and prospective license applicants with a clear and certain regulatory process.

The proposed rule provides additional background information on the SPTA, the Treaty, and the basis for the proposed regulations. The proposed rule also includes information about an advance notice of proposed rulemaking (ANPR) that was issued on March 28, 2008 (73 FR 16619). The ANPR established a control date of March 28, 2008, for participation in the U.S. purse seine fishery managed under the SPTA (hereafter, “WCPO purse seine fishery”). The control date is the date after which vessel owners and operators attempting to enter the WCPO purse seine fishery are not assured of being granted entry into or future participation in the fishery if all available licenses have been issued, or if NMFS limits the number of available licenses or imposes other management measures in the fishery. The ANPR also solicited comments and input on possible criteria and procedures that NMFS could use to review, order, and process license applications. The public comments made in response to the ANPR are summarized in the proposed rule.

The main elements of this final rule are described below, starting with the license application and review procedures, followed by the license allocation system (including transferability provisions), and closing with the VMS-related requirements.

(1) The distinction between joint venture licenses (licenses for fishing activities designed to maximize the benefits generated for the PIPs, of which there are five available) and “general licenses” (the remaining licenses, of which there are 40 available) is clarified, and separate application procedures are established for the two license types.

(2) To obtain approval from NMFS for a joint venture license, in addition to submitting a complete application, as for a general license, an applicant is required to obtain initial approval from the FFA, as Treaty Administrator, as well as documentation from the relevant PIP or PIPs providing concurrence for the issuance of a joint venture license for the vessel. Upon receipt of a complete application for a joint venture license, NMFS will process and approve the application as it would for a general license, except that it will not issue pre-approvals, as described below for general licenses. NMFS will approve applications for joint venture licenses on a first-come, first-served basis, based on the date of initial approval by the FFA.

(3) To provide an opportunity for applicants to receive earlier and greater certainty on the status of their general license applications for a given licensing period, applicants will be allowed to seek and receive pre-approval of their applications. They may do so by submitting expressions of interest earlier than the submission of complete applications. A pre-approval will serve to temporarily reserve an application approval spot until the time that complete applications are due. Whether a pre-approval is issued for a given application will depend on the outcome of the allocation process, described below. Because of time constraints associated with implementing this rule, pre-approvals will not be issued for the 2011-2012 licensing period.

(4) For a given licensing period—with the exception of the 2011-2012 licensing period, for which pre-approvals will not be issued—the due date for submitting expressions of interest for general licenses is June 1st of the year preceding the year in which the licensing period begins. The due date for submitting complete applications for general licenses is February 5th of the year in which the licensing period begins. Complete applications may be submitted after this date, but they will be considered for approval only if licenses remain available after giving preference to expressions of interest and complete applications that were received by their respective due dates. License approvals for such late applications will be considered on a first-come, first-served basis. Due dates are also established for applications for general licenses that become available after the initial issuance of license approvals.

(5) With the exception of the 2011-2012 licensing period, for which pre-approvals will not be issued, NMFS will pre-approve applications for general licenses by July 16th of the year preceding the year in which the licensing period begins, and notify applicants of its decisions by July 26th of that preceding year. NMFS will approve applications for general licenses by March 7th of the year in which the licensing period begins, and notify applicants of its decisions by March 17th of the same year.

(6) A process to appeal NMFS' pre-approval and approval decisions is established. Appeals will be required to be submitted in writing within 14 days of the notice of NMFS' decision. The initial decision on an appeal will be made by a designee of the NMFS Pacific Islands Regional Administrator within 30 days of the appeal. Within 10 days of notice of the initial decision, the applicant may request a review of the initial decision. The final decision on an appeal will be made by the Assistant Administrator for Fisheries, NOAA, or a designee, within 30 days of the request for review. The final decision will constitute the final administrative action of the Department of Commerce.

(7) Interim procedures are established through these regulations for the 2011-2012 licensing period, as the final rule will not become effective in time for the new procedures to be fully applied for that licensing period. These procedures do not include any provisions regarding pre-approvals. Instead, the application process starts with the February 5, 2011, due date for submitting complete applications.

(1) The following criteria will be used to prioritize applicants for general licenses. Based on this prioritization, NMFS will issue pre-approvals for up to 40 applications for general licenses. However, for the 2011-2012 licensing period only, for which NMFS will not issue pre-approvals, NMFS will use these same prioritization criteria to issue approvals.

First priority will be given to applications for license renewals, but not all renewing applicants will necessarily receive first priority. Specifically, an application will receive first priority if NMFS has approved a license application for that vessel not later than fourteen (14) days prior to the start of the preceding licensing period. Also included in the first priority pool are applications for vessels licensed in the current or previous two licensing periods, but that were lost or were destroyed. In the event that a licensed vessel is lost or destroyed, the applicant will be reserved an approval spot for the licensing period in which the vessel was lost, and for the two subsequent licensing periods, provided that the ownership of the replacement vessel is identical to the ownership of the lost vessel.

Second priority will be given to applicants according to a ranking system in which points are assigned to an applicant as follows: (a) 15 points will be assigned if the vessel has been issued, or will be issued by the time application approvals are issued, in accordance with applicable U.S. Coast Guard regulations, a valid U.S. Coast Guard Certificate of Documentation with a fishery endorsement (among the eligibility criteria for receiving a fishery endorsement are that the vessel must have been built in the United States, and if rebuilt, it must have been rebuilt in the United States); (b) one point will be assigned for each licensing period, starting with the 1988-1989 licensing period, in which a Treaty license has been issued for the vessel, for a total of no more than 10 points; (c) one point will be assigned for each calendar year in which at least 3,000 metric tons of fish were landed or transshipped from the vessel in U.S. ports (including ports located in any of the U.S. States, commonwealths, territories, or possessions) starting in 1988 and ending in the year prior to the year in which the applied-for licensing period starts, for a total of no more than 5 points; and (d) if application of the foregoing criteria results in a tie, priority will be given to the vessel from which the greatest amount of fish, by weight, was landed or transshipped in U.S. ports (including ports located in any of the U.S. States, commonwealths, territories, or possessions) starting in 1988 and ending in the year prior to the year in which the applied-for licensing period starts. If there is still a tie, priority will be given by a lottery conducted by the NMFS Pacific Islands Regional Administrator.

(2) With respect to joint venture licenses, NMFS will not pre-approve applications or prioritize applications using the system established for general licenses. Instead, NMFS will approve joint venture license applications on a first-come, first-served basis, based on the date of initial approval by the FFA.

(3) With respect to the interim procedures that are established for the 2011-2012 licensing period, NMFS will apply the same prioritization system and criteria as it would for subsequent licensing periods, but it will do so only after receiving the complete applications that will be due February 5, 2011.

(4) The final rule clarifies that application approvals from NMFS are not transferable among vessel owners or operators or applicants. It does, however, allow limited transferability of application approvals among vessels. Specifically, if a general or joint venture license has been issued to a vessel, and has been valid for at least 365 consecutive days, and all required fees to the FFA for the vessel have been paid, the vessel operators will be able to request that the license be transferred to a different vessel. Such a transfer will only be allowed if the ownership of the transferee vessel is identical to that of the licensed vessel, and the transferee vessel otherwise meets the requirements for licensing under 50 CFR part 300 and the SPTA.

This final rule modifies the regulations at 50 CFR 300.45, which relate to the installation, carrying, and operation of VMS units on vessels licensed under the SPTA. Prior to this final rule, the regulations required that the VMS units installed and carried on board vessels consist of hardware and software that are type-approved by the Treaty Administrator. Those requirements were consistent with the terms of the Treaty, which mandates that the VMS units used on licensed vessels be of a type approved by the Treaty Administrator. The regulations are now modified to require that the hardware and software that constitute the VMS units be type-approved by both the Treaty Administrator and NMFS. The purpose of this change is to ensure that the VMS units used on licensed vessels are compatible with, and meet the technical standards of, the vessel monitoring system administered by NMFS, as well as the vessel monitoring system administered by the Treaty Administrator.

NMFS publishes separately lists of the VMS units that it has type-approved. The current type-approval lists can be obtained from the NOAA Office of Law Enforcement, 8484 Georgia Avenue, Suite 415, Silver Spring, MD 20910; by telephone at 888-210-9288; or by fax at 301-427-0049.

NFMS received one public comment on the proposed rule. It is summarized below, followed by a response from NMFS.

Comment: The regulations should have an allowance for a vessel owner to submit a complete license application after the February 5th deadline and to be able to receive a license if the allowable number of licenses has not been allocated to vessels that met the February 5th deadline. This procedure provides a process for the allocation of licenses up to the limit allowed under the treaty. Freezing the number of licenses to those submitted only by the February 5th deadline could cause a restriction to a level below the allowed limit, and it could take away an opportunity or opportunities for allocating licenses to owners who were not in a position to submit a complete application by the February 5th deadline.

Response: The commenter is correct that as written, the proposed rule would not allow a prospective license holder to receive a license if the application is received by NMFS after the specified due dates, even if a license is available. NMFS agrees that such a system could effectively limit the number of available licenses in any given licensing period to fewer than the number allowed under the Treaty, and thereby may unduly restrict opportunities to participate in the fishery. Consequently, the licensing procedures of the final rule have been clarified to allow an applicant to apply for a license for a given licensing period at any time up to May 15th within the licensing period ( i.e., 30 days before the end of the licensing period). That is, in order to be assured that an application will be considered for approval, a complete application must still be received by NMFS by the due date specified in this final rule. However, NMFS will consider for approval all applications received after the applicable due date established in this final rule if and as long as licenses remain available. Such applications will be considered on a first-come, first-served basis, based on the day of receipt. In the event that two or more complete applications are received on the same day, priority for approval will be given by lottery.

As described above in NMFS' response to the public comment on the proposed rule, changes have been made in this final rule in order to provide for application approvals to be issued for “late applications” ( i.e., applications submitted after the due dates used for the purpose of allocating application approvals in the event that more applications are received than there are licenses available). The change allows NMFS to approve such “late applications” on a first-come, first-served basis, and only after giving preference to applicants that submitted their applications within the due dates, and only in the event that licenses remain available after the expiration of the application approval deadline.

Specifically, clarifications have been made to paragraphs (h) and (k) of § 300.32 to provide that an application submitted as late as May 15th within a given licensing period may be considered for approval if there are licenses remaining. However, in order to be considered for approval in the event that more applications are received than there are licenses available, the complete application must be received by NMFS by February 5th of the year in which the licensing period begins, or, in the case of the license approval becoming available after the initial issuance of approvals, at a specified later date. Paragraph (k) of § 300.32 has been clarified to provide for NMFS to consider “late applications” received no later than May 15th within the licensing period for approval on a first-come, first-served basis, and only after giving preference to expressions of interest and complete applications that were received within their respective due dates. Paragraph (k) of § 300.32 goes on to state that in the event that two or more “late applications” are received on the same day, priority will be given by lottery, which will be conducted by the NMFS Pacific Islands Regional Administrator.

A correction was made to the criteria specified in paragraph (k) of § 300.32 that would be used to determine first priority for pre-approvals. Under the proposed rule, first priority would be given to applications for vessels with valid licenses as of June 1st of the year preceding the year in which the subject licensing period begins; that is, to vessels with licenses for the licensing period two periods previous to the subject licensing period. However, an unintended effect of this lag is that a vessel that enters the fishery for the first time in the 2011-2012 licensing period would not receive first priority ( i.e., as a license renewal) for the 2012-2013 licensing period. Consequently, a correction was made to paragraph (k)(4)(i) of § 300.32 such that first priority for pre-approvals for a given licensing period will be given to vessels for which, as of June 1st of the year preceding the year in which the subject licensing period begins, application approvals have been issued by NMFS for the licensing period that precedes the subject licensing period. Because paragraph (n) of § 300.32, which specifies exceptional procedures to be used for the 2011-2012 licensing period, makes reference to paragraph (k)(4)(i) of § 300.32, appropriate technical corrections have been made to paragraph (n) of § 300.32 so that its meaning does not change. Specifically, it now states that for the 2011-2012 licensing period only, first priority will be given to vessels that, as of February 5, 2011, have valid licenses for the 2010-2011 licensing period.

A change has been made to the definition of “Regional Administrator” in § 300.31; the definition now includes a facsimile number that may be used for the purpose of submitting information and materials required under 50 CFR part 300, subpart D.

In addition to the substantive changes described above, a number of minor changes have been made in the regulations in order to clarify their meaning.

The NOAA Assistant Administrator for Fisheries has determined that this final rule is consistent with the SPTA and other applicable laws.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. NMFS received no comments disputing the basis for this certification.

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by the Office of Management and Budget (OMB) under control number 0648-0218. Public reporting burden for this collection of information, called “South Pacific Tuna Act,” is estimated to average: (a) For the optional expressions of interest in vessel licenses, 15 minutes per response for license renewals and 120 minutes per response for initial licenses (with one optional response per year); (b) for the license application forms, 60 minutes per response (with one response per year); (c) for the FFA Regional Register applications/VMS registration forms, 45 minutes per response (with 1 response per year); (d) for the catch report forms, 60 minutes per response (with 5 responses per year); and (e) for the unloading logsheet, 30 minutes per response (with 6 responses per year). These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS ( see ADDRESSES ) and by e-mail to OIRA_Submission@omb.eop.gov or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) provides the legal authority for the promulgation of emergency regulations under section 305(c).

NMFS responded to the April 20, 2010 Deepwater Horizon MC252 oil spill by closing a portion of the Gulf EEZ to all fishing through an emergency rule effective May 2, 2010 (75 FR 24822, May 6, 2010). Oil continued to leak from the Deepwater Horizon MC252 site and the spatial and temporal location of the oil in the Gulf EEZ continued to change. NMFS revised the closed area in a second emergency rule that became effective May 7, 2010 (75 FR 26679, May 12, 2010). The dynamic situation regarding the Deepwater Horizon MC252 oil spill required a method to respond rapidly to changing conditions. Delaying the announcement of the new fishery closed area could have led to the possible harvest of adulterated seafood products. Therefore, NMFS issued a third emergency rule, effective May 11, 2010 (75 FR 27217, May 14, 2010) that allowed NMFS to revise the closed area as needed (on a daily or weekly basis) and announce the revised closed area via NOAA Weather Radio, Fishery Bulletin, and NOAA Web site updates, without the need to announce the new closure boundary coordinates in the Federal Register.

The third emergency rule also identified a procedure for reopening closed areas. Closed areas may be reopened if NMFS has determined that oil from the Deepwater Horizon MC252 oil spill has never been in those areas. Closed areas may also be reopened if NMFS has determined that fish and other marine species within the closed area meet FDA standards for public health and wholesomeness. The procedures did not specifically address fishery interactions with sub-surface oil or oil byproducts. This temporary rule revises the NMFS procedure by allowing for timely adjustment of the spatial and temporal scale of closed areas to fishing activities in response to new information regarding an interaction of the Gulf shrimp fishery with sub-surface oil and oil byproducts.

In response to this interaction, which occurred approximately 22 miles (35 km) from the Deepwater Horizon MC252 well head, NMFS is taking temporary action to prohibit royal red shrimp fishing in a specific area of the Gulf EEZ. The area of the Gulf EEZ currently closed to all fishing would continue to remain in effect.

The public may obtain the updated boundary coordinates for the fishery closed area by listening to NOAA Weather Radio, visiting various NOAA Web sites, reading the e-mailed or posted Fishery Bulletins, receiving a text message or a tweet that the closed area has been revised, or by calling the Deepwater Horizon MC252 oil spill hotline number (1-800-627-6622) to listen to a recorded message of the updated boundary coordinates. To improve public outreach, the fishery bulletins and the recorded messages are also available in Spanish and Vietnamese.

This rulemaking informs the public of the boundary coordinates of the current area closed to all fishing as well as the new area closed to royal red shrimp fishing only. The current area closed to all fishing related to the Deepwater Horizon MC252 oil spill, as of November 15, 2010, is bounded by rhumb lines connecting, in order, the following coordinates:

The area closed to royal red shrimp fishing only, as of 6 p.m. Eastern Time, on November 24, 2010, is bounded by rhumb lines connecting, in order, the following coordinates:

Pursuant to second 305(c) of the Magnuson-Stevens Act, this rule will remain in effect for 10 days, unless superseded by subsequent rulemaking.

This action is issued pursuant to section 305(c) of the Magnuson-Stevens Act, 16 U.S.C. 1855(c).

This rulemaking is a “significant regulatory action” under section 3(f) of Executive Order 12866. The Department of Commerce has notified the Office of Management and Budget Office of Information and Regulatory Affairs (OMB/OIRA) under section 6(a)(3)(D) of the Executive Order, and OMB/OIRA agrees, that NOAA is promulgating this action in an emergency situation and that normal Executive Order review is not practicable at this time. For this reason, OMB/OIRA has not reviewed this notice under EO 12866.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. Prior notice and the opportunity for public comment would be impracticable and contrary to the public interest, as delaying this action is a seafood safety concern and could result in compromised seafood products reaching the public. This action allows NMFS to close and reopen areas of the Gulf, as needed, in response to new information regarding the royal red shrimp component of the Gulf shrimp fishery with sub-surface oil and oil byproducts. This rule closes an area of the Gulf EEZ to royal red shrimp fishing in response to an interaction with the Gulf shrimp fishery and sub-surface oil and oil byproducts that occurred approximately 22 miles (35 km) from the Deepwater Horizon MC252 well head. The intent of this action is to prevent the harvest of adulterated seafood products. A timely response is needed to ensure seafood safety and consumer confidence in seafood products.

For the reasons stated above, the AA also finds good cause to waive the 30-day delay in effective date of this rule under 5 U.S.C. 553(d)(3).

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

The reef fish fishery of the Gulf of Mexico is managed under the fishery management plan (FMP). The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On October 18, 2010, NMFS published the proposed temporary rule and requested public comment (75 FR 63786).

This final temporary rule will reduce the commercial quota for gag, reduce the combined commercial SWG quota, prohibit recreational harvest of gag, and suspend red grouper multi-use allocation in the Gulf grouper and tilefish IFQ program. The purpose of this final temporary rule is to reduce overfishing of the gag resource in the Gulf. No changes were made to this final rule as a result of public comment.

The following is a summary of the comments NMFS received on the proposed rule and NMFS' respective responses. During the comment period, NMFS received 55 comments on the proposed rule.

Comment 1: A number of commenters questioned the scientific basis used to assess gag stocks and how scientific information was applied to support fishery management decisions. They indicated the data NMFS used were outdated, flawed, or anecdotal.

Response: Stock assessments are conducted under the scientifically peer-reviewed Southeast Data, Assessment, and Review (SEDAR) process which was initiated in 2002 to improve the quality and reliability of fishery stock assessments in the Gulf, South Atlantic, and U.S. Caribbean. SEDAR seeks improvements in the scientific quality of stock assessments and supporting information available to address existing and emerging fishery management issues. This process emphasizes constituent and stakeholder participation in assessment development, transparency in the assessment process, and a rigorous and independent scientific review of completed stock assessments. SEDAR is organized around 3 workshops. First, the data workshop documents, analyzes, and reviews datasets to be used for assessment analyses. Second, the assessment workshop develops and refines quantitative population analyses and estimates population parameters. The final workshop is conducted by a panel of independent experts who review the data and the assessment and recommend the most appropriate values of critical population and management quantities. The 2006 gag assessment and 2009 update assessment were both conducted within this SEDAR process. All workshops and Council-initiated meetings to review the assessment were open to the public and included constituent participation on the various SEDAR panels to ensure the transparency of the data and how it was applied in the assessments. In addition, the Council's Scientific and Statistical Committee reviewed the assessment results and made recommendations to the Council about the adequacy of the assessments and what level to set the acceptable biological catch. The data incorporated into the SEDAR assessment is derived from both fishery-dependent and fishery-independent data. Examples of fishery-dependent data include, but are not limited to: Logbook data, trip tickets, dockside sampling, dealer reports, and marine recreational fishing statistical surveys (MRFSS). Fishery-independent data sources consist of data provided through surveys and research conducted by Federal, state, and academic institutions. Furthermore, NOAA's Southeast Fisheries Science Center reviews and certifies that the actions contained in this rulemaking are based on the best available scientific information.

Comment 2: Several individuals doubted that red tide could be responsible for the 2005 mortality event modeled in the gag update assessment.

Response: Red tide may have contributed to the 2005 episodic mortality event. In the 2009 update assessment, 10 models were run that varied different parameters within the assessment. The model with the best fit took into account decreases in indices of abundance thought to have occurred because of the red tide event documented in 2005. Although the model cannot show a direct link between the red tide event and the decrease in gag abundance, it does indicate a variable was present in 2005 that depressed the stock size.

Comment 3: Several commenters indicated that it was unfair to close the recreational sector while allowing some commercial harvest to continue. Comments indicated a complete closure of both sectors would be more fair and that commercial fishermen should be able to target other species with methods to minimize the bycatch of gag. One commenter disliked an implied reference to the opening of the recreational sector by the Council in subsequent rulemaking.

Response: The Council discussed a complete closure to all gag harvest pending the outcome of the review of the assessment, but determined it was more reasonable to allow some commercial harvest. This decision was expected to minimize the mortality of gag caught by the commercial sector while targeting other species, and ultimately maximize the extent of a recreational season in 2011.

The commercial sector has a lower overall allocation and harvest of gag, and likely a lower overall impact on the gag stock; nevertheless, the commercial sector has a higher discard mortality rate of the gag that are caught. Because the fish inadvertently caught by commercial operations are less likely to survive being caught, the Council decided the most reasonable action was to allow some retention of fish that would otherwise be discarded dead. The quota of 100,000 lb (45,359 kg) was believed to be low enough to discourage commercial vessels from fishing in areas with high gag catch, because of the high levels of discards in such areas, while still allowing some level of gag retention when gag were incidentally caught.

Although the recreational sector has a lower discard mortality rate, it has a higher discard rate, as well as a much larger allocation of the total allowable catch, thus resulting in a substantial number of dead discards by the recreational sector overall. Thus, allowing the recreational sector even a limited harvest of gag early in 2011 would result in large number of dead discards as well. If this temporary closure were not to occur for the recreational sector, projections indicate that gag harvest would likely close early in the 2011 fishing year, leading to a very abbreviated season. The Council's request is expected to discourage fishing in areas where gag catch is likely to occur, and minimize the number of gag dead discards until the Council can implement 2011 management measures through Amendment 32. Landing projections indicate the recreational season length could be maximized by moving the gag recreational season to the summer. Therefore, more restrictive measures early in the 2011 season are ultimately expected to result in greater season length later in the year and greater fishing opportunities for the recreational sector as a whole.

Comment 4: Several commenters indicated gag are plentiful and, therefore, further management measures are unnecessary. Other commenters indicated that although the gag population does seem depressed, the proposed management measures seem overly restrictive. Several commenters suggested alternative management measures including different seasonal closures, reduced bag limits, and changing the status of gag to a gamefish.

Response: The 2006 assessment and 2009 update assessment for gag used a variety of data including those from fishery-dependent and fishery-independent sources. Several models were used including models that took into account a 2005 episodic mortality event. These models consistently indicated the gag stock was depressed. The model recommended by the Council's Scientific and Statistical Committee (SSC) was the model taking into account the 2005 episodic mortality event. This model indicated the stock was overfished and undergoing overfishing, prompting NMFS to inform the Council of this condition and that action is needed to rebuild the stock.

In evaluating different management measures, the Council evaluated alternative seasonal closures, area closures, bag limits, and size limits. Because of the magnitude of discards by the recreational sector, only the seasonal closure alternatives would meet the required reductions, and these alternatives indicated a summer season would best maximize the time the sector could remain open. Given the uncertainty surrounding the reductions needed for gag resulting from issues with how dead discards were treated in the update assessment, and given the Council's recommendation that the recreational season could be maximized in the summer, the Council requested a temporary closure of the recreational sector until these issues could be resolved.

Comment 5: Several commenters stated that shifts in species abundance have negatively affected gag stocks. Specifically, an increased red snapper population has shifted gag away from their primary habitats and an increased goliath grouper population is feeding heavily on gag.

Response: Species interactions among Gulf reef fish species are poorly understood; models that examine the linkages between species are not yet adequate to determine the effects of management measures on species interactions. However, it is important to note that species such as red snapper and goliath grouper are managed by NMFS and the Council to improve their stock condition. Therefore, as these stocks improve, some interactions could occur through competition for food or habitat. With respect to goliath grouper, although they do feed on fish and will opportunistically prey upon fish caught with hook-and-line, they feed primarily on crustaceans. In one scientific study, conducted by Coleman and Koenig, over 200 goliath grouper were sampled from the Gulf, and no grouper species were found in the analysis of their stomach contents ( http://www.bio.fsu.edu/coleman_lab/goliath_grouper.php ).

Comment 6: Some commenters indicated that gag overharvest was due to the actions of the commercial sector. They suggested implementing measures to restrict commercial harvest such as banning longline gear, instead of reducing recreational harvest.

Response: When the allocation of gag harvest was developed for the recreational and commercial sectors in Amendment 30B, it was based on average landings between 1986 and 2005. The resultant allocation ratio is 61:39, respectively. Therefore, even if commercial harvest were prohibited, some restrictions on recreational harvest would still be necessary to allow the stock to rebuild. It is beyond the scope of this temporary rule to ban longline gear because such a ban would not end overfishing; however, recently implemented management measures taken through Amendment 31 (75 FR 21512; April 26, 2010) have reduced the number of longline vessels in the Gulf reef fish fishery and further limited where they can fish.

Comment 7: Several commenters indicated regionalized gag management should be considered to allow a greater proportion of the gag harvest to occur in areas where gag are more abundant.

Response: It is outside of the scope of this temporary rule to consider regionalized management because such an approach would not lead directly to ending overfishing. However, the Council continues to examine regionalized management for reef fish species. In the course of developing long-term management measures in Amendment 32, the Council is considering seasonal-area closures for grouper species which is considered an example of regionalized management.

Comment 8: Several commenters indicated fishing effort was reduced because of current economic conditions and fishery closures resulting from the Deepwater Horizon MC252 oil spill.

Response: In developing fishing regulations to limit harvest, current and past fishing effort levels are taken into account. These levels would reflect trends in effort because of factors such as the economy and the oil spill. As shown in the environmental assessment for this action, gag effort, in 2009, was below the 2005-2009 average. However, these recent reductions in effort are likely less than what will be needed to end overfishing of gag and rebuild the stock.

NMFS is in the process of analyzing landings data to determine the effects of the spill on fishing effort. Oil from the Deepwater Horizon MC252 incident, at its maximum extent, affected approximately one-third of the Gulf EEZ, from western Louisiana east to the panhandle of Florida and south to Campeche Bay in Mexico. However, the affected areas are outside the west Florida Shelf where gag are primarily found. Most of the gag habitat was either not affected by fishery closures resulting from the oil spill, or the duration of the closures was limited. Therefore, the opportunity to harvest gag was minimally affected compared to the opportunity to harvest other species primarily harvested in the northern Gulf, such as red snapper.

Comment 9: One commenter suggested that the proposed prohibition on the recreational harvest of gag would do little to reduce the total number of gag killed by the Gulf reef fish fishery because recreational harvest would still result in gag bycatch and subsequent release mortality.

Response: The total number of gag caught and released under a recreational harvest prohibition would be less than if the harvest prohibition were not in place. Based on data from the 2006 SEDAR assessment, recreationally discarded fish have a lower discard mortality rate (~32 percent) than commercially discarded fish (~67 percent), and therefore the likelihood of survival for released fish is much higher for the recreational sector. This is because recreational effort primarily occurs in shallower waters where discard mortality rates are low.

The Regional Administrator, Southeast Region, NMFS, (RA) determined that the interim measures this final temporary rule will implement are necessary for the conservation and management of the Gulf gag resource. The RA has also determined that this final temporary rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws.

This final temporary rule has been determined to be not significant for the purposes of E.O. 12866.

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

The Magnuson-Stevens Act provides the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified.

No comments received directly raised issues specific to the IRFA. However, many comments raised concerns regarding the Regulatory Impact Review (RIR) in the Environmental Assessment (EA). Some of these comments address issues indirectly related to the IRFA. While the IRFA analyzes the economic effects on small entities, a direct relationship exists between the RIR and the IRFA. Thus, all comments related to the RIR and IRFA are addressed here.

A number of public comments were received regarding the economic impact of the gag component of the reef fish fishery to the U.S. economy, most of which mentioned the economic impact of recreational sector. These comments stated that NMFS did not conduct an economic assessment of the affected economic environment, the assessment was incomplete, or the assessment was inaccurate.

Using the best available information, NMFS conducted an economic impact assessment of the gag component of the reef fish fishery to the U.S. economy. For the commercial sector, this assessment included information regarding the number of affected shareholders and vessels, their landings, gross revenue, shares and allocation of gag, and the distribution of longline endorsements. Information regarding the number of affected dealers, as well as the volume and value of their seafood purchases, was also included. The assessment also included information regarding the value of imported grouper. In addition, ex-vessel revenue was used to generate estimates of impacts to the U.S. economy in terms of output, income, and the number of full-time equivalent (FTE) jobs.

For the recreational sector, the analysis included estimates of losses in pounds and number of fish, which were used to estimate the loss in consumer surplus to all anglers. For the for-hire sector, the analysis also incorporated estimates of the number of adversely affected for-hire (charter and headboat) vessels, as well as the reduction in target trips for gag and net operating revenue by month and for the duration of the closure. In addition, estimates of adverse economic impacts to the U.S. economy in terms of lost output, value-added, and the number of full-time equivalent (FTE) jobs were also provided. Estimates of these adverse economic impacts were also broken down by State and mode. For these reasons, no changes were made to this final rule as a result of these comments.

This final temporary rule is expected to directly affect commercial harvesting and for-hire operations. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S., including fish harvesters. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. For for-hire vessels, the other qualifiers apply and the receipts threshold is $7.0 million (NAICS code 713990, recreational industries).

This final temporary rule is expected to directly affect commercial fishing vessels whose owners possess gag fishing quota shares and for-hire fishing vessels that harvest gag. As of October 1, 2009, 970 entities owned a valid commercial Gulf reef fish permit and thus were eligible for initial shares and allocation in the grouper and tilefish IFQ program. Of these 970 entities, 908 entities initially received shares and allocation of grouper or tilefish, and 875 entities specifically received gag shares and an initial allocation of the commercial sector's gag quota in 2010. These 875 entities are expected to be directly affected by the actions to reduce the commercial quota for gag and disallow the conversion of red grouper allocation to multi-use allocation.

Of the 875 entities that initially received gag shares, 215 were not commercially fishing in 2008 or 2009 and thus had no commercial fishing revenue during these years. On average, these 215 entities received an initial allocation of 874 lb (397 kg) of gag in 2010. Eight of these 215 entities also received a bottom longline endorsement in 2010. These 8 entities received a much higher initial allocation of gag in 2010, with an average of 3,139 lb (1,427 kg).

The other 660 entities that initially received gag shares and allocations in 2010 were active in commercial fisheries in 2008 or 2009. The maximum annual commercial fishing revenue in 2008 or 2009 by an individual vessel with commercial gag fishing quota shares was approximately $606,000 (2008 dollars).

The average charterboat is estimated to earn approximately $88,000 (2008 dollars) in annual revenue, while the average headboat is estimated to earn approximately $461,000 (2008 dollars). Based on these values, all commercial and for-hire fishing vessels expected to be directly affected by this final temporary rule are determined for the purpose of this analysis to be small business entities.

Of the 660 commercial fishing vessels with commercial landings in 2008 or 2009, 139 vessels did not have any gag landings in 2008 or 2009. Their average annual gross revenue in these 2 years was approximately $50,800 (2008 dollars). The vast majority of these vessels' commercial fishing revenue is from a combination of snapper, mackerel, dolphin, and wahoo landings. On average, in 2010, these vessels received an initial allocation of 540 lb (245 kg) of gag quota.

The remaining 521 commercially active fishing vessels did have landings of gag in 2008 or 2009. Their average annual gross revenue from commercial fishing was approximately $71,000 (2008 dollars) between the two years. On average, these vessels had 2,375 lb (1,080 kg) and 1,300 lb (591 kg) of gag landings in 2008 and 2009 respectively, or 1,835 lb (834 kg) between the 2 years. Gag landings accounted for approximately 8 percent of these vessels' annual average gross revenue, and thus they are somewhat, though not significantly, dependent on revenue from gag landings. These vessels' average initial gag allocation in 2010 was 2,121 lb (964 kg). Therefore, on average, their 2008 gag landings were very near their 2010 gag allocation, but their 2009 gag landings were considerably less than their 2010 allocation.

Of these 521 vessels, 52 vessels also received a bottom longline endorsement in 2010. These particular vessels' average annual revenue was approximately $156,000 (2008 dollars) in 2008 and 2009. Revenue from gag landings decreased from approximately $15,900 to $8,400 in 2009 and thus they became relatively less dependent on gag landings. These vessels are highly dependent on revenue from red grouper landings, which accounted for 54 percent and 47 percent of their gross revenue in 2008 and 2009, respectively. Revenue from deep-water grouper (DWG) landings decreased only slightly, from approximately $36,000 in 2008 to $31,000 in 2009, and thus these vessels became relatively more dependent on revenue from DWG landings. Their average initial 2010 allocation of gag was approximately 5,507 lb (2,503 kg) while their average gag landings were 3,933 lb (1,788 kg) and 2,204 lb (1,002 kg) in 2008 and 2009, respectively. Thus, vessels that now have a bottom longline endorsement have been harvesting well below that allocation in recent years, particularly in 2009.

The for-hire fleet is comprised of charter vessels, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. The harvest of gag in the EEZ by for-hire vessels requires a charter vessel/headboat permit for Gulf reef fish. On March 23, 2010, there were 1,376 valid or renewable for-hire Gulf reef fish permits. A valid permit is a non-expired permit. Expired reef fish for-hire permits may not be actively fished, but are renewable for up to 1 year after expiration. Because of the extended permit renewal period, numerous permits may be expired but still renewable at any given time of the year during the renewal period after the permit's expiration. The majority (823, or approximately 60 percent) of the 1,376 valid or renewable permits were registered with Florida addresses. The registration address for the Federal permit does not restrict operation to Federal waters off that state; however, vessels would be subject to any applicable state permitting requirements. Although the permit does not distinguish between headboats and charter vessels, it is estimated that 79 headboats operate in the Gulf. The majority of these vessels (43, or approximately 54 percent) operate from Florida ports. Given that nearly 99 percent of target effort for gag and 97 percent of the economic impacts from the recreational sector for gag in the Gulf reef fish fishery are in west Florida, it is assumed that the 823 for-hire vessels (780 charter vessels and 43 headboats) in Florida are expected to be directly affected by the action to reduce the recreational bag limit for gag to zero.

The 215 entities with gag shares that did not participate in commercial fishing in 2008 or 2009 have no commercial fishing revenue and did not earn profit from commercial fishing in those 2 years. Under the action to decrease the commercial quota for gag, their allocation of gag in 2011 would be reduced, on average, from 874 lb (397 kg) to 61 lb (28 kg), or by approximately 813 lb (370 kg). Using the 2008 average price of $3.52 per lb, this loss in allocation could potentially represent an annual loss of nearly $2,900 in gross revenue per entity. For the eight entities with gag shares that also possess longline endorsements, their average annual allocation of gag would be reduced from 3,139 lb (1,427 kg) to 220 lb (100 kg), or by 2,919 lb (1,327 kg). Thus, their potential loss in gross revenue, estimated to be nearly $10,280, could be much higher. However, in general, this potential loss in gross revenue could only reduce profit if these entities not only become active in commercial fishing, but specifically intend to harvest gag in 2011 and at a level above their reduced allocation. Alternatively, these potential losses in gross revenue could be due to these entities' inability to sell the allocations they are losing under this action, though this possibility presumes that a demand for these allocations exists. Regardless, the significance of this potential loss in gross revenue to these 215 entities cannot be evaluated given the lack of information on potential gross revenue and profit from commercial fishing in general and specifically for gag.

Profit estimates are not currently available for the 139 entities with gag shares that participated in commercial fisheries other than gag. However, since these vessels did not have any gag landings, none of their gross revenue and thus none of their profit were the result of gag harvests. Under the action to decrease the commercial quota for gag, their average allocation of gag in 2011 would be reduced from 540 lb (245 kg) to 38 lb (17 kg), or by approximately 502 lb (228 kg). Using the 2008 average price of $3.52 per pound, this loss in allocation could potentially represent an annual loss of nearly $1,800 in gross revenue per entity. However, this potential loss in gross revenue could only lead to a loss in profit if these entities intend to become active in the gag component of the Gulf reef fish fishery in 2011 and at a level above their reduced allocation. Thus, for example, assuming these vessels intend to harvest gag in 2011 at a level equivalent to their 2010 allocation, and this harvest was in addition to, rather than in place of, their recent commercial fishing activities, the reduction in allocation could lead to a maximum loss of approximately three percent in gross revenue which could in turn reduce profit. Alternatively, these losses in gross revenue could be due to these entities' inability to sell the allocations they are losing under this action, though this possibility presumes that a demand for these allocations exists.

Profit estimates are not currently available for the 521 entities with gag shares that participated in the commercial gag sector of the Gulf reef fish fishery in 2008 or 2009. Under the action to decrease the commercial gag quota, these vessels' gag allocations would be reduced from 2,121 lb (964 kg) to 148 lb (67 kg), or by approximately 1,973 lb (897 kg) on average. As these vessels have been harvesting at levels near their 2010 allocation in recent years on average, this reduction in gag allocation is likely to lead to a future reduction in gag landings and therefore gross revenue. Using the average 2008 price of $3.52 per pound, it is estimated that these vessels could lose nearly $6,950, or approximately 10 percent, in average annual gross revenue. A loss in gross revenue of this magnitude would likely lead to a reduction in profit.

However, for the 52 vessels with gag shares that were active in the gag component of the Gulf reef fish fishery and also received a bottom longline endorsement in 2010, their allocation of gag in 2011 would decrease from 5,707 lb (2,594 kg) to 400 lb (182 kg), or by approximately 5,307 lb (2,412 kg) under this action. This loss in landings is estimated to be valued at approximately $18,700 in gross revenue, or 12 percent of their average annual gross revenue. Such a loss in gross revenue would likely reduce their profit.

Under the action to suspend the conversion of red grouper allocation into multi-use allocation valid toward the harvest of red grouper or gag, minimal adverse economic effects are expected as a result of commercial fishing entities not being allowed to convert 4 percent of their red grouper allocation into multi-use allocation. Multi-use allocation that has been converted from red grouper allocation can only be used to possess, land, or sell gag after an entity's gag and gag multi-use allocation has been landed, sold, or transferred. As a result of this reduction in the commercial gag quota, it is likely these entities will exhaust their gag and gag multi-use allocations relatively early in 2011. Revenue from gag landings is greater than revenue from an equivalent amount of red grouper landings since gag commands a relatively higher market price. Thus, total commercial fishing revenue and, therefore, profit per vessel could be slightly less than if the multi-use conversion were allowed to continue.

Net operating revenues (NOR) are assumed to be representative of profit for for-hire vessels. It is assumed that 823 for-hire vessels, 780 charter vessels, and 43 headboats, participate in the recreational gag component of the Gulf reef fish fishery. Estimates of NOR from recreational fisheries other than gag, and thus across all fisheries in which these charter vessels and headboats participate, are not currently available. However, on average, NOR for charter vessels from trips targeting gag are estimated to be approximately $1.34 million per year while NOR for headboats from trips targeting gag are estimated to be $81,000 per year. NOR for all trips targeting gag are estimated to be approximately $1.35 million per year. The average annual NOR from trips targeting gag are estimated to be $1,716 per charter vessel and $1,881 per headboat.

When the length of the gag season is reduced by setting the recreational bag limit for gag at zero, some trips that formerly targeted gag will instead target other species while other trips that formerly targeted gag will be cancelled. Assuming the NOR per trip is constant regardless of the species targeted, for-hire operators will only lose NOR from trips cancelled as a result of the shortened season length. Information regarding the number of trips cancelled as a result of the shortened season is not current available. Thus, this analysis assumes that all of the current for-hire trips targeting gag will be cancelled. Because some of these trips would probably not be cancelled, this assumption is expected to overestimate the actual reduction in NOR associated with a shorter season. Thus, the following estimates of losses in NOR and profit for charter vessels and headboats should be considered maximum values.

Under the action to set the gag recreational bag limit for gag at zero, the losses in NOR from trips targeting gag for charter vessels and headboats are estimated to be approximately $750,000 and $43,000, respectively, if this final temporary rule is not extended for up to 186 days as allowed under the Magnuson-Stevens Act for interim measures. Thus, the losses in NOR from trips targeting gag are estimated to be $962 and $1,000 per charter vessel and headboat, respectively. These NOR losses represent a loss in profit from trips targeting gag of approximately 56 percent and 53 percent per charter vessel and headboat, respectively. However, if there is an extension of this final temporary rule, the losses in NOR for charter vessels and headboats are estimated to be approximately $1.34 million and $81,000, respectively. Thus, the losses in NOR are estimated to be $1,716 and $1,881 per charter vessel and headboat, respectively. These losses in NOR represent a loss in profit for all charter vessel and headboat trips targeting gag. This action is not expected to affect profit for charter vessels and headboats from trips not targeting gag. Vessel dependence on fishing for individual species cannot be determined with available data. Although some vessels are likely more dependent on trips that target gag than other vessels, overall, about three percent of for-hire anglers are estimated to target gag. As a result, while the action would be expected to substantially affect the NOR derived from gag trips, overall, gag trips do not comprise a substantial portion of total for-hire trips nor would they, by extension, be expected to account for a substantial portion of total for-hire NOR.

No additional economic effects would be expected to result from the revised SWG quota because the updated SWG quota simply reflects the reduction in the commercial gag quota, the effects of which have already been discussed.

Three alternatives, including the status quo, were considered for the action to reduce the commercial quota for gag from 1.49 million lb (0.68 million kg) to 100,000 lb (45,359 kg) in 2011. The first alternative, the status quo, would have maintained the commercial quota for gag at 1.49 million lb (0.68 million kg) in 2011. This alternative is not consistent with the goals and objectives of the Council's plan to manage gag to achieve the mandates of the Magnuson-Stevens Act. Specifically, selection of this alternative would be inconsistent with current National Standard 1 guidance because this quota would be above the allowable biological catch (ABC) recommended by the Council's SSC of 1.17 million lb (0.53 million kg) for 2011. In addition, this alternative would promote overfishing and slow recovery of the stock.

The second alternative would have set the commercial quota for gag at 390,000 lb (0.18 million kg), with one option to release the entire quota on January 1, 2011 and a second option to release 50 percent of the quota on January 1, 2001 and the remaining 50 percent on July 1, 2011. This quota is based on projected fishing mortality at optimum yield (F OY ) yield streams, 1.01 million lb (0.46 million kg) for 2011, and is consistent with the methods used by the Council in Amendment 30B for setting the annual catch target. This harvest level corresponds with the Council's initial request for an interim rule at its June 2010 meeting. The commercial quota for gag under this alternative is less than what the quota would be if based on the SSC's ABC recommendation (F Rebuild yield stream) of 1.17 million lb (0.53 million kg). Based on the SSC's recommendation, selecting this alternative would have a less than 50 percent chance of overfishing by the commercial sector and would provide a greater than 50 percent chance of rebuilding the stock if this yield stream is adhered to in future actions. However, recent discrepancies with the estimation of dead discards could affect how the assessment projects the status of the stock. If these discrepancies show a more pessimistic condition of the stock when the assessment is rerun, then selecting this alternative could result in harvest levels inconsistent with rebuilding the stock within the time frames outlined in the Magnuson-Stevens Act. Should these discrepancies result in a more optimistic condition of the stock, then the commercial quota for gag could be increased in subsequent actions.

The third alternative is the most conservative and would set the commercial quota for gag equal to zero. Under this alternative, any addition to the quota would be initiated through Amendment 32 or some other rulemaking vehicle. Closure of the commercial sector to gag would benefit the stock by ending overfishing as well as halt gag fishing during the primary gag spawning season. However, this alternative would not allow gag allocation holders to land gag that might be caught incidentally when fishing for other species. Instead, these fish would have to be released. Because the commercial sector generally operates in relatively deep waters, a large proportion of these fish would likely die from barotrauma (injuries sustained in response to the sudden pressure change when brought to the surface from depth) and from handling onboard the vessel. Release mortality has been estimated to be 67 percent on average for commercial discards. This high rate of discard mortality would contribute to overall mortality, thereby slowing recovery of the stock and thus is contrary to the Council's objectives.

Two alternatives, including the status quo, were considered for the action to suspend the ability of allocation holders to convert red grouper allocation into multi-use allocation valid toward the harvest of red grouper or gag. The first alternative, the status quo, would continue to allow 4 percent of the red grouper allocation to be converted into multi-use allocation. This alternative is expected to result in gag harvests that would exceed specified annual catch limits, promote overfishing, and therefore slow recovery of the stock, contrary to the Council's objectives. Further, this alternative is also expected to result in greater adverse economic effects stemming from the corrective measures that would be implemented to address the over-harvesting of gag.

The second alternative would allow a smaller percentage (1.6 percent) of red grouper allocation to be converted into multi-use allocation based on the buffer existing between the commercial annual catch limit (ACL) and quota for gag. This alternative is consistent with a gag commercial ACL of 1.76 million lb (0.8 million kg) and a 1.49 million lb (0.68 million kg) commercial quota for gag. Since this final rule will establish the commercial quota for gag at only 100,000 lb (45,359 kg), the percentage of red grouper allocation that could be converted to multi-use allocation is too high under this alternative as it is expected to result in gag harvests that would exceed specified ACLs, promote overfishing, and therefore slow recovery of the stock, contrary to the Council's objectives.

Two alternatives, including the status quo, were considered for the action to set the recreational bag limit at zero. The first alternative, the status quo, would maintain the recreational catch target at 2.20 million lb (1 million kg) as defined in Amendment 30B and thus maintain the current recreational bag limit of two gag within the four fish aggregate grouper bag limit. Selection of this alternative would be inconsistent with current National Standard 1 guidance because this level of harvest would be above the ABC recommended by the Council's SSC of 1.17 million lb (0.53 million kg) for 2011. In addition, this alternative would promote overfishing and slow recovery of the stock.

The second alternative would set the gag bag limit to zero on the date when 620,000 lb (0.28 million kg) of gag is projected to be landed by the recreational sector in 2011. This harvest level is consistent with the fishing mortality rate associated with the optimum yield (OY) used by the Council in Amendment 30B to set the recreational annual catch target. Under certain assumptions regarding the disposition of discards, this alternative is expected to result in a fishing season of 83 days. Given the closure of the SWG recreational sector annually from February 1 to March 31, fishing would be allowed for the month of January and from April 1 to May 22. However, this fishing season is dependent on achieving the same percentage reduction in dead discards as obtained from the harvest. If these levels of reduction are not met, then harvesting this amount of fish could exceed the reductions needed for the stock to recover under the rebuilding plan being developed in Amendment 32 which, in turn, could require deeper cuts in future harvests than those projected by the current assessment update.

Although, as specified by the Magnuson-Stevens Act, the actions in this final temporary rule do not need to end overfishing, they do need to reduce overfishing. This alternative could limit the types of long-term measures developed by the Council in Amendment 32 that could be applied to the 2011 fishing year since the 620,000 lb (0.28 million kg) catch target would likely be achieved before rulemaking from Amendment 32 is implemented. Therefore, the harvest for the rest of the fishing year could be zero and any long-term measures developed in Amendment 32 would not apply until 2012.

Further, recent discrepancies with the estimation of dead discards could affect how the assessment projects the status of the stock. If these discrepancies show a more pessimistic condition of the stock when the assessment is redone, then selecting this alternative could result in harvest levels inconsistent with rebuilding the stock within the time frames outlined in the Magnuson-Stevens Act. This potential outcome is particularly important for the recreational sector which harvests a greater proportion of the gag total catch than the commercial sector. Conversely, should these discrepancies result in a more optimistic condition of the stock, the recreational catch target and bag limit could be increased in subsequent actions.

This final temporary rule does not establish any new reporting, recordkeeping, or other compliance requirements.

The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On October 18, 2010, NMFS published a proposed rule for the red grouper regulatory amendment and requested public comment (75 FR 63780). The proposed rule and the regulatory amendment outline the rationale for the measures contained in this final rule. A summary of the provisions implemented by this final rule is provided below.

This final rule will reduce the red grouper commercial quota from 5.75 million lb (2.53 million kg) to 4.32 million lb (1.96 million kg), and thus the combined SWG commercial quota from 7.65 million lb (3.47 million kg), as specified in § 622.42(a)(1)(iii)(A) for 2011 and subsequent fishing years, to 6.22 million lb (2.82 million kg) for 2011 and subsequent fishing years, and require vessels with valid commercial Gulf reef fish permits to mark their buoy gear with the official vessel number. This final rule will also make minor revisions to the codified text, including a revised definition of buoy gear, re-codification of the commercial and recreational quotas for greater amberjack, revision of the recreational accountability measure for greater amberjack, and removal of outdated language for the red snapper IFQ program. The purpose of this final rule is to help prevent overfishing of red grouper while achieving OY by reducing red grouper harvest consistent with the findings of the recent stock assessment for this species.

This rule is effective January 1, 2011, except for the commercial SWG quota contained in this final rule. NMFS is delaying, until a future notification in the Federal Register, the commercial quota for SWG species specified in § 622.42(a)(1)(iii)(A). This delay is necessary because the interim final rule to reduce overfishing of gag, which is published in this issue of the Federal Register, will also become effective January 1, 2011, and the SWG quota contained in that interim final rule takes into account the temporary reduction in the gag commercial quota, and is therefore a lower quota than contained in this rule. After termination or expiration of the interim final rule, the timing of which is currently uncertain, NMFS will announce the effective date of the SWG quota contained in this final rule, unless it is superseded by subsequent rulemaking. Compliance with all other provisions of this final rule are required beginning January 1, 2011, which is the start of the fishing year and the date that quota share is distributed to IFQ participants.

The following is a summary of the comments NMFS received on the proposed rule and the red grouper regulatory amendment, and NMFS respective responses. During the comment period, NMFS received 12 comments on the proposed rule. The submissions included one letter from a Federal agency and one letter from a non-governmental organization. The remaining submissions were unique letters from individuals.

Comment 1: Some commenters questioned the scientific basis used to assess red grouper stocks and how scientific information was applied to support fishery management decisions. They indicated the data used were outdated, flawed, or anecdotal.

Response: Stock assessments are conducted under the scientifically peer reviewed Southeast Data, Assessment, and Review (SEDAR) process, which was initiated in 2002 to improve the quality and reliability of fishery stock assessments in the Gulf, South Atlantic, and U.S. Caribbean. SEDAR seeks improvements in the scientific quality of stock assessments and supporting information available to address existing and emerging fishery management issues. This process emphasizes constituent and stakeholder participation in assessment development, transparency in the assessment process, and a rigorous and independent scientific review of completed stock assessments. SEDAR is organized around three workshops. First, the data workshop documents, analyzes, and reviews datasets to be used for assessment analyses. Second, the assessment workshop develops and refines quantitative population analyses and estimates population parameters. The final workshop is conducted by a panel of independent experts who review the data and the assessment and recommend the most appropriate values of critical population and management quantities. The 2006 red grouper assessment and 2009 update assessment were both conducted within this SEDAR process. All workshops and Council initiated meetings to review the assessment were open to the public and included constituent participation on the various SEDAR panels to ensure the transparency of the data and how it was applied in the assessments. The data incorporated into the SEDAR assessment is derived from both fishery-dependent and fishery-independent data. Examples of fishery-dependent data include, but are not limited to; logbook data, trip tickets, dockside sampling, dealer reports, and marine recreational fishing statistical survey (MRFSS). Fishery-independent data sources consist of data provided through surveys and research conducted by Federal, state, and academic institutions. In addition, the Council's Scientific and Statistical Committee reviewed the assessment results and made recommendations to the Council about the adequacy of the assessments and what level to set the acceptable biological catch.

Comment 2: One commenter questioned that red tide could be responsible for the 2005 mortality event modeled in the update assessment.

Response: Red tide is thought to have contributed to the 2005 episodic mortality event. In the 2009 update assessment, two models were run to estimate red grouper abundance. The model with the best fit was one that took into account decreases in indices of abundance thought to have occurred because of the red tide event documented in 2005. Although the model cannot show a direct link between the red tide event and the decrease in red grouper abundance, it does indicate a variable was present in 2005 that depressed the stock size.

Comment 3: Some commenters indicated that problems with the red grouper stock were due to the red grouper commercial harvest, particularly the longline component of the commercial sector. They suggested measures restricting commercial harvest such as banning or severely restricting longline gear use.

Response: Recent management measures implemented through Amendment 31 (75 FR 21512, April 26, 2010) have reduced the number of longline vessels in the Gulf reef fish fishery and further limited where they can fish. A ban on longline gear is outside the scope of this action because a gear ban is not currently authorized under the framework procedures within the FMP as a measure that may be implemented through a regulatory amendment. Additional management measures to rebuild the red grouper stock may be implemented through Amendment 32.

Comment 4: Several commenters were against lowering the red grouper total allowable catch (TAC), particularly because the stock is neither overfished nor undergoing overfishing. One commenter pointed out that if the commercial sector was harvesting red grouper at a level below the TAC, then there is no rationale for revising the current management measures. Commercial fishermen pointed out that by reducing the TAC, and thus the commercial quota, the amount of IFQ allocation they will receive will also be reduced making it harder to make a living commercial fishing.

Response: The 2009 update assessment for red grouper indicated that although the stock continues to be neither overfished nor undergoing overfishing, the stock has declined since 2005. As described in the assessment's discussion of the stock's status, this decline was attributed to a 2005 episodic mortality event resulting in over 20 percent additional mortality to the adult stock. Therefore, there is a need to improve the stock condition to a level where, at equilibrium, the stock can be harvested at OY. This goal is consistent with the Magnuson-Stevens Act, which requires NMFS and regional fishery management councils to prevent overfishing, and achieve, on a continuing basis, the OY from federally managed fish stocks. The TAC, and resultant commercial quota, that the Council proposed is based on recommendations from the SSC to allow the stock to recover to the equilibrium stock size where OY can be harvested.

Comment 5: One commenter indicated that the proposed buoy gear definition was still too ambiguous to be effectively enforced. The commenter stated that gangions should not be allowed as a method to attach hooks to buoy gear and that there should be a limited number of buoy gear rigs allowed for a vessel.

Response: The revised definition of buoy gear will enhance the enforceability of the use of this gear, both at sea and shoreside. By allowing the use of gangions for attaching hooks on buoy gear, reef fish fishermen who previously used longlines, but had to change their fishing methods because they did not qualify for a longline endorsement under actions implemented through Amendment 31, will save money since they already possess gangions from their currently owned longline gear. A limit on the number of buoy gear rigs that can be carried on a vessel was not considered. The intent of the action was not to reduce the use of buoy gear, it was merely to more precisely identify the gear; thus measures limiting the amount of gear that could be used are beyond the scope of the issue being addressed.

Comment 6: Several commenters indicated regionalized red grouper management should be considered to allow a greater proportion of the red grouper harvest to occur in areas where red grouper are more abundant.

Response: Regionalized management was not considered as an alternative for this action because it will not prevent overfishing of red grouper. However, the Council continues to examine regionalized management for reef fish species. In the course of developing long-term management measures in Amendment 32, the Council is considering seasonal-area closures for grouper species, which is considered an example of regionalized management.

Comment 7: One commenter indicated fishing effort is reduced because of current economic conditions and, therefore, no management measures are required for the recreational sector.

Response: In developing fishing regulations to limit harvest, current and past fishing effort levels are taken into account. These levels would reflect trends in effort stemming from factors such as the economy. This was considered in the decision to not revise the recreational management measures for red grouper.

The Regional Administrator, Southeast Region, NMFS has determined that this red grouper regulatory amendment is necessary for the conservation and management of Gulf reef fish and is consistent with the Magnuson-Stevens Act and other applicable laws.

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

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

The Magnuson-Stevens Act provides the statutory basis for this final rule.

No duplicative, overlapping, or conflicting Federal rules have been identified.

The preamble of this final rule and the previously published proposed rule provides a statement of the need for and objectives of this rule, and it is not repeated here.

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

This final rule is expected to directly affect commercial harvesting operations. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S., including fish harvesters. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide.

This final rule is expected to directly affect commercial fishing vessels whose owners possess commercial Gulf reef fish permits or red grouper fishing quota shares. As of August 10, 2010, 951 entities possessed a valid or renewable Gulf reef fish permit. These 951 entities are expected to be directly affected by the action to require vessels to mark their buoy gear with their official vessel number.

This final rule will not alter existing reporting or record keeping requirements but will alter certain compliance requirements. Specifically, vessels with valid commercial Gulf reef fish permits will be required to mark their buoy gear with their official vessel number. The most significant burden imposed by this requirement is the time needed to mark the gear. Under the definition of buoy gear, the maximum number of buoys per vessel is expected to be 20. The time required to mark each buoy is estimated to be approximately 20 minutes. Thus, the annual time burden per vessel is approximately 6.67 hours. According to the most recent data from the Bureau of Labor Statistics (BLS), the average nominal wage for fishers and fishing related workers is $12.79, or $12.74 in 2008 dollars. This value is used as a monetary estimate of the opportunity cost of time on a per hour basis. Thus, the annual opportunity cost per vessel resulting from this requirement is estimated to be approximately $85. For the 951 vessels with valid or renewable commercial Gulf reef fish permits, the annual opportunity cost is estimated to be $80,812. Since opportunity costs impose no direct financial costs, this increase in opportunity costs is not expected to reduce profit for these vessels.

As of October 1, 2009, 970 entities owned a valid commercial Gulf reef fish permit, and thus, were eligible for initial shares and allocation in the grouper and tilefish IFQ program. Of these 970 entities, 908 entities initially received shares and allocation of grouper or tilefish, and 815 entities specifically received red grouper shares and an initial allocation of the commercial sector's red grouper quota in 2010. These 815 entities are expected to be directly affected by the action to reduce the red grouper commercial quota.

Of the 815 entities that initially received red grouper shares, 191 were not commercially fishing in 2008 or 2009 and thus had no commercial fishing revenue during these years. On average, these 191 entities received an initial allocation of 6,459 lb (2,936 kg) of red grouper in 2010. Eight of these 191 entities also received a bottom longline endorsement in 2010. These 8 entities received a much higher initial allocation of red grouper in 2010, with an average of approximately 44,000 lb (20,000 kg).

The other 624 entities that initially received red grouper shares and allocations in 2010 were active in commercial fisheries in 2008 or 2009. The maximum annual commercial fishing revenue in 2008 or 2009, by an individual vessel with a commercial Gulf reef fish permit or red grouper fishing quota shares was approximately $606,000 (2008 dollars). Based on this value, all commercial fishing vessels expected to be directly affected by this final rule are determined for the purpose of this analysis to be small business entities.

Of the 624 commercial fishing vessels with commercial landings in 2008 or 2009, 126 vessels did not have any red grouper landings in 2008 or 2009. Their average annual gross revenue in these 2 years was approximately $55,800 (2008 dollars). The vast majority of these vessels' commercial fishing revenue is from a combination of landings of snapper, mackerel, dolphin, and wahoo. However, as described in the regulatory amendment, in 2009, they did become relatively more dependent on landings of highly migratory species (HMS) and relatively less dependent on landings of deep-water grouper species. On average, in 2010, these vessels received an initial allocation of 2,524 lb (1,147 kg) of red grouper quota. Five of these vessels also received a bottom longline endorsement in 2010.

The remaining 498 commercially active fishing vessels did have landings of red grouper in 2008 or 2009. Their average annual gross revenue from commercial fishing was approximately $66,000 (2008 dollars) between the two years. On average, these vessels had 9,425 lb (4,284 kg) and 6,734 lb (3,061 kg) of red grouper landings in 2008 and 2009 respectively, or 8,053 lb (3,660 kg) between the 2 years. Red grouper landings accounted for approximately 35 percent of these vessels' annual average gross revenue, and thus they are relatively dependent on revenue from red grouper landings. These vessels' average initial red grouper allocation in 2010 was 8,404 lb (3,820 kg). Therefore, on average, their 2008 and 2009 red grouper landings are very near their 2010 red grouper allocation, though their red grouper landings differed considerably between 2008 and 2009.

Of these 498 vessels, 49 vessels also received a bottom longline endorsement in 2010. These particular vessels' average annual revenue was approximately $156,000 (2008 dollars) in 2008 and 2009. Revenue from red grouper landings decreased from approximately $104,000 to $65,000 in 2009. Nonetheless, these vessels remain highly dependent on revenue from red grouper landings, which averaged approximately 36,000 lb (13,364 kg) in 2008 and 23,000 lb (10,455 kg) in 2009. Their average initial 2010 allocation of red grouper was approximately 42,000 lb (19,091 kg) and thus their recent year's harvest has been within that 2010 average allocation, particularly in 2009.

The 191 entities with red grouper shares that did not participate in commercial fishing in 2008 or 2009 have no commercial fishing revenue and did not earn profit from commercial fishing in those 2 years. Under the action to decrease the red grouper commercial quota, allocation of red grouper in 2011 will be reduced, on average, by approximately 1,608 lb (731 kg). Using the 2008 average price of $2.85 per lb, this loss in allocation could potentially represent an annual loss of nearly $4,600 in gross revenue per entity. For the eight entities with red grouper shares that also possess longline endorsements, the average annual allocation of red grouper will be reduced by nearly 11,000 lb (5,000 kg). Thus, the potential loss in gross revenue, estimated to be nearly $31,400, could be much higher. However, in general, this potential loss in gross revenue could only reduce profit if these entities not only become active in commercial fishing, but specifically intend to harvest red grouper in 2011, and at a level above their reduced allocation. It is important to note that the commercial sector has not harvested the commercial red grouper quota since the 2006 fishing year. Alternatively, these potential losses in gross revenue could be due to these entities' inability to sell the allocations they are losing under the action, though this possibility presumes that a demand for these allocations exists. Nevertheless, the significance of this potential loss in gross revenue to these 191 entities cannot be evaluated given the lack of information on potential gross revenue and profit from commercial fishing in general and specifically for red grouper.

Profit estimates are not currently available for the 126 entities with red grouper shares that participated in the commercial sector for species other than red grouper. However, since these vessels did not have any red grouper landings, none of their gross revenue and thus none of their profit were the result of red grouper harvests. Under the action to decrease the red grouper commercial quota, the average allocation of red grouper in 2011 will be reduced by approximately 629 lb (286 kg). Using the 2008 average price of $2.85 per pound, this loss in allocation could potentially represent an annual loss of nearly $1,800 in gross revenue per entity. However, this potential loss in gross revenue could only lead to a loss in profit if these entities intend to become active in the red grouper component of the Gulf reef fish fishery in 2011 and at a level above their reduced allocation. Thus, for example, assuming these vessels intend to harvest red grouper in 2011 at a level equivalent to their 2010 allocation, and this harvest was in addition to, rather than in place of, their recent commercial fishing activities, the reduction in allocation could lead to a maximum loss of approximately three percent in gross revenue which could in turn reduce profit. Alternatively, losses in gross revenue could be due to these entities' inability to sell the allocations being lost under the action, though this possibility presumes that a demand for the allocations exists.

Profit estimates are not currently available for the 498 entities with red grouper shares that participated in the commercial red grouper sector of the Gulf reef fish fishery in 2008 or 2009. Under the action to decrease the red grouper quota, these vessels' red grouper allocations will be reduced by approximately 2,092 lb (951 kg) on average. As these vessels have been harvesting at levels near their 2010 allocation in recent years on average, this reduction in red grouper allocation is likely to lead to a future reduction in red grouper landings and therefore gross revenue. Using the average 2008 price of $2.85 per pound, it is estimated that these vessels could lose nearly $6,000, or approximately 9 percent, in average annual gross revenue. A loss in gross revenue of this magnitude will likely lead to a reduction in profit.

However, for the 49 vessels with red grouper shares that were active in the red grouper component of the Gulf reef fish fishery and also received a bottom longline endorsement in 2010, their allocation of red grouper in 2011 will decrease by approximately 10,400 lb (4,727 kg) under the action. For these particular vessels, the loss in red grouper landings could range from zero to the full amount of the decrease in allocation, though the latter is unlikely given new regulations restricting the use of longline gear implemented through Amendment 31 (75 FR 21512, April 26, 2010). Even if these vessels intend to harvest red grouper in 2011 at levels comparable to 2008, prior to the implementation of regulations restricting the use of longline gear, they will only lose approximately 4,600 lb (2,091 kg) in red grouper landings rather than the full amount of their reduced allocation. This loss in landings is estimated to be valued at approximately $13,000 in gross revenue, or 8 percent of their average annual gross revenue. Such a loss in gross revenue will likely reduce their profit. However, if they intend to harvest at levels comparable to 2009, then their reduced allocation will still be above their intended landings. Therefore, the reduction in allocation will not lead to a reduction in landings from what they will have otherwise been and thus gross revenue and profit will also not be reduced.

Two alternatives, including the status quo, were considered for the action to reduce the red grouper commercial quota to 4.32 million lb (1.96 million kg). The first alternative, the status quo, will have maintained the red grouper commercial quota at the current level of 5.75 million lb (2.61 million kg). This alternative is not consistent with the goals and objectives of the Council's plan to manage red grouper to achieve the mandates of the Magnuson-Stevens Act. Specifically, this alternative will be inconsistent with current National Standard 1 guidance because the associated TAC of 7.57 million lb (3.43 million kg) will be above the allowable biological catch (ABC) of 6.31 million lb (2.86 million kg) recommended by the Council's SSC.

The second alternative would have set the red grouper commercial quota at 4.80 million lb (2.18 million kg). This amount is equal to 85 percent of the yield of the fishing mortality at maximum sustainable yield (F MSY ), which the SSC considered sufficient to reduce the probability that overfishing might occur in 2011. However, this alternative is inconsistent with the method established by the Council in Amendment 30B where the annual catch target will be based on the yield associated with the fishing mortality at OY (F OY ).

One alternative, the status quo, was considered for the action to require vessels with valid commercial Gulf reef fish permits to mark their buoy gear with the official vessel number. The Council and NMFS have determined that the current definition of buoy gear is ambiguous. This ambiguity has led to problems with monitoring and enforcement of buoy gear regulations and thus a clearer definition of this gear type is being implemented. By not requiring the marking of buoy gear, this alternative will not improve the monitoring and enforcement of buoy gear regulations since law enforcement personnel will not be able to determine which vessel deployed the gear if the gear is left unattended.

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) applicable to vessels in the Gulf reef fish fishery, namely, a requirement to mark buoy gear with the official vessel number (U.S. Coast Guard documentation number or state registration number).

This requirement has been approved by the OMB under control number 0648-0359. The public reporting burden for this collection-of-information is estimated to average 20 minutes per buoy. This estimate of the public reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information. Send comments regarding the burden estimate or any other aspect of the collection-of-information requirement, including suggestions for reducing the burden, to NMFS and to OMB (see ADDRESSES ).

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

This temporary final rule extends the emergency rule published on July 20, 2010 (75 FR 41996), in order to extend the time period for which the revised pollock status determination criteria and catch limits are in effect through the end of FY 2010 (April 30, 2011). The July 2010 emergency final rule included detailed information on the background and reasons for the need to revise the pollock status determination criteria and catch limits. The public had an opportunity to comment on that rule, but no comments were submitted. NMFS will again accept public comment on both the appropriateness of the emergency action to date, and its extension.

The emergency specifications extended through this final rule include the revised pollock stock status determination and catch limits for FY 2010, as follows: The revised biomass target parameter (SSB msy; 91,000 mt); the maximum fishing mortality rate threshold (Fmsy; 0.25); Overfishing Levels (OFLs); Acceptable Biological Catches (ABCs); Annual Catch Limits (ACLs); ACL components; and incidental Total Allowable Catches (TACs) for special management programs. The ACL components included sub-ACLs for the common pool and sectors.

The pollock status determination criteria and catch specifications implemented by the initial emergency action were consistent with the best scientific information available, but were not evaluated by the New England Fishery Management Council's (Council) Scientific and Statistical Committee (SSC). The SSC met on August 25-26, 2010, subsequent to the July 20, 2010, publication of the emergency rule, to discuss catch limits for FY 2011, including pollock. Although the SSC did not discuss the FY 2010 catch specifications for pollock, it accepted the revised assessment of pollock (SAW 50) as a basis for revising ABC recommendations, and affirmed use of the control rule for setting the pollock ABC (catch associated with 75 percent of Fmsy), the method utilized in setting the FY 2010 pollock catch specifications. The SSC characterized the risk associated with the utilization of the pollock ABC control rule in conjunction with the SAW 50 stock assessment as follows: “Scenario analyses indicated that ABCs based on 75 percent Fmsy have low risk of overfishing and low risk of leading to an overfished stock by 2015 if the domed survey selectivity estimated by the SAW 50 assessment is true. However, if selectivity is actually flat-topped, ABCs based on the SAW 50 assessment and 75 percent Fmsy have high risk of overfishing (risk > 50 percent) and a moderate risk of leading to an overfished stock by 2015 (risk between 25 percent and 50 percent).”

The pollock catch limits are contained in Tables 1 and 2 below. Consistent with the FMP, the incidental catch TAC is divided between the Regular B DAS Program (84 percent) and the Closed Area I Hook Gear Haddock Special Access Program (14 percent).

This action will extend the pollock catch limits through July 17, 2011, or until FW 45 (which includes FY 2011 pollock specifications, and is currently being developed by the Council with an anticipated May 1, 2011, effective date) or other action supersedes this.

No comments were received on the initial emergency rule.

NMFS has determined that the emergency specifications extended by this temporary final rule are necessary and are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable law.

The interim rule that this rule extends was determined to be not significant for purposes of E.O. 12866.

This rule is exempt from the procedures of the Regulatory Flexibility Act to prepare a regulatory flexibility analysis because the rule is issued without opportunity for prior public comment.

The EA prepared for the initial emergency rule analyzed the impacts of the emergency specifications for the duration of a year (Secretarial Emergency Action to Revise Fishing Year 2010 Catch Limits for Pollock; Environmental Assessment; May 28, 2010). Therefore, the impacts of this emergency action extension have been analyzed, and are within the scope of the Finding of No Significant Impact.