History

On January 3, 2012, a final rule for Airspace Docket No. 11-AAL-18, FAA Docket No. FAA-2011-0881 was published in the Federal Register (77 FR 6), amending controlled airspace at Kwigillingok Airport, AK. Subsequent to publication, an error was found in the latitude coordinate for Kwigillingok Airport, and the radius referencing Class E 700 foot airspace. This action corrects these errors.

Accordingly, pursuant to the authority delegated to me, the legal description as published in the Federal Register on January 3, 2012 (77 FR 6), (FR Doc. 2011-33566), is corrected as follows:

In the FR Doc. 2011-33554, appearing on page 7 in the Federal Register of Tuesday, January 3, 2012 (77 FR 7), the following correction is made:

1. On page 15, in the third column, in the third full paragraph, the first sentence is corrected to read: “To comply with section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)), FDA published a notice of proposed collection of information on December 30, 2011.” We are making this change because the notice of proposed collection inadvertently did not publish on January 3, 2012.

This document and additional information concerning OFAC are available from OFAC's Web site ( http://www.treasury.gov/ofac ) or via facsimile through a 24-hour fax-on-demand service, tel.: (202) 622-0077.

OFAC administers the Côte d'Ivoire Sanctions Regulations, 31 CFR part 543 (the “CDISR”), the Darfur Sanctions Regulations, 31 CFR part 546 (the “DSR”), and the Democratic Republic of the Congo Sanctions Regulations, 31 CFR part 547 (the “DRCSR”), which implement Executive Order 13396 of February 7, 2006, “Blocking Property of Certain Persons Contributing to the Conflict in Côte d'Ivoire” (71 FR 7389, February 10, 2006) (“E.O. 13396”), Executive Order 13400 of April 26, 2006, “Blocking Property of Persons in Connection With the Conflict in Sudan's Darfur Region” (71 FR 25483, May 1, 2006) (“E.O. 13400”), and Executive Order 13413 of October 27, 2006, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo” (71 FR 64105, October 31, 2006) (“E.O. 13413”), respectively.

Providing “financial, material, or technological support” for the activities described in paragraphs (a)(2)(i) through (a)(2)(iv) of section 543.201 of the CDISR, paragraphs (a)(2)(i) through (a)(2)(vi) of section 546.201 of the DSR, and paragraphs (a)(2)(i) through (a)(2)(v) of section 547.201 of the DRCSR, or for any person whose property and interests in property are blocked under these regulations, constitutes one of the criteria in these regulations for designation as a person whose property and interests in property are blocked.

In particular, paragraph (a)(2)(v) of section 543.201 of the CDISR implements section 1(a)(ii)(E) of E.O. 13396 by blocking the property and interests in property of persons determined by the Secretary of the Treasury, after consultation with the Secretary of State, to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, the activities described in paragraphs (a)(2)(i) through (a)(2)(iv) of section 543.201 or any person whose property and interests in property are blocked pursuant to paragraph (a) of section 543.201.

Similarly, paragraph (a)(2)(vii) of section 546.201 of the DSR implements section 1(a)(ii)(G) of E.O. 13400 by blocking the property and interests in property of persons determined by the Secretary of the Treasury, after consultation with the Secretary of State, to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, the activities described in paragraphs (a)(2)(i) through (a)(2)(vi) of section 546.201 or any person whose property and interests in property are blocked pursuant to paragraph (a) of section 546.201.

Finally, paragraph (a)(2)(vi) of section 547.201 of the DRCSR implements section 1(a)(ii)(F) of E.O. 13413 by blocking the property and interests in property of persons determined by the Secretary of the Treasury, after consultation with the Secretary of State, to have materially assisted, sponsored, or provided financial, material, or technological support for, or goods or services in support of, the activities described in paragraphs (a)(2)(i) through (a)(2)(v) of section 547.201 or any person whose property and interests in property are blocked pursuant to paragraph (a) of section 547.201.

OFAC today is amending the CDISR, the DSR, and the DRCSR, to define the term “financial, material, or technological support,” as used in these regulations. New sections 543.313 in subpart C of the CDISR, 546.313 in subpart C of the DSR, and 547.313 in subpart C of the DRCSR define the term “financial, material, or technological support” to mean any property, tangible or intangible, and include a list of specific examples.

Because the amendment of 31 CFR part 543, 31 CFR part 546, and 31 CFR part 547 involves a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553), requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to 31 CFR part 543, 31 CFR part 546, and 31 CFR part 547 are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR parts 543, 546, and 547 as follows:

The Old Saybrook-Old Lyme RR Bridge at mile 3.4, across the Connecticut River at Old Lyme, Connecticut, has a vertical clearance in the closed position of 19 feet at mean high water and 22 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.205(b).

The owner of the bridge, National Passenger Railroad Corporation (Amtrak), requested a temporary deviation from the regulations to facilitate bridge maintenance by replacing the secondary reducer bearing.

Under this temporary deviation the Old Saybrook-Old Lyme RR Bridge may remain in the closed position from 7 a.m. on March 5, 2012 through 11 p.m. on March 7, 2012.

All known waterway users were notified and no objections were received.

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

On October 22, 2010, VA published in the Federal Register (75 FR 65279) a proposed rule that would add AL amyloidosis to VA's Schedule for Rating Disabilities to update the schedule of ratings for the hemic and lymphatic systems, 38 CFR 4.117, by creating diagnostic code 7717. The schedule previously did not contain a diagnostic code for AL amyloidosis. As an unlisted condition, it has been rated by analogy to non-Hodgkin's lymphoma using the “built-up” diagnostic code 7799-7715. However, AL amyloidosis requires a set of evaluation criteria with a unique diagnostic code, to serve as a basis for disability rating, because the condition is not part of the group of diseases under the non-Hodgkin's lymphoma classification, but, rather, a disorder of the bone marrow characterized by the accumulation and deposition of abnormal, insoluble proteins called light chain amyloid proteins in any organ of the body, interfering with the structure and function of the organ. Additionally, adding the diagnostic code would establish criteria for disability evaluation to fully implement the decision by the Secretary of Veterans Affairs to grant presumptive service connection based on herbicide exposure for this disease. A final rule regarding that decision was published in the Federal Register at 74 FR 21258, which amended 38 CFR 3.309(e) by adding AL amyloidosis to the list of diseases associated with exposure to certain herbicide agents. For these reasons, VA proposed a regulation that would amend VA's Schedule of Rating Disabilities by adding rating guidance and a diagnostic code specifically for AL amyloidosis.

VA proposed diagnostic code 7717 for AL amyloidosis because it was the first available diagnostic code in the Hemic and Lymphatic Systems listed in § 4.117. VA proposed to assign a 100 percent rating because the disease is incurable and progressive, generally causing death in a few years. Providing a 100-percent evaluation in all cases would obviate the need to repeatedly reassess and reevaluate veterans with AL amyloidosis over a short period of time. Because of the poor prognosis, no follow-up examination will be required for re-evaluation of this disability rating. VA also proposed to refer to AL amyloidosis in diagnostic code 7717 as “primary amyloidosis,” which is another common name for the same disease. VA also proposed to amend 38 CFR Part 4, Appendices A, B, and C to reflect the proposed addition of diagnostic code 7717 for AL amyloidosis to the rating schedule.

A 60-day comment period ended December 21, 2010, and we received one comment from a member of the general public. The comment expressed support for the rule. We are not making any changes in the final rule based on this supportive comment.

As no further comments were received, we thus are making no changes to the proposed rule. Therefore, based on the rationale set forth in the proposed rule and this document, we are adopting the provisions of the proposed rule as a final rule with no changes.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule will have no such effect on State, local, and tribal governments, or on the private sector.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The rule could affect only VA beneficiaries and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program numbers and titles for this rule are as follows: 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on February 2, 2012, for publication.

For the reasons set out in the preamble, 38 CFR part 4 is amended as set forth below:

On July 18, 1997 (62 FR 36852), EPA established an annual PM 2.5 NAAQS at 15.0 micrograms per cubic meter (μg/m 3 ) based on a 3-year average of annual mean PM 2.5 concentrations. On January 5, 2005 (70 FR 944), EPA published its air quality designations and classifications for the 1997 annual PM 2.5 NAAQS based upon air quality monitoring data for calendar years 2001-2003. These designations became effective on April 5, 2005. The Chattanooga Area (which is comprised of a portion of Jackson County in Alabama, Catoosa and Walker Counties in Georgia and Hamilton County in Tennessee) was designated nonattainment for the 1997 annual PM 2.5 NAAQS. See 40 CFR 81.311.

Designation of an area as nonattainment starts the process for a state to develop and submit to EPA a SIP under title 1, part D of the CAA. This SIP must include, among other elements, a demonstration of how the NAAQS will be attained in the nonattainment area as expeditiously as practicable but no later than the date required by the CAA. Under CAA section 172(b), a state has up to three years after an area's designation as nonattainment to submit its SIP to EPA. For the 1997 PM 2.5 NAAQS, these SIPs were due April 5, 2008. See 40 CFR 51.1002(a).

On July 31, 2009, October 27, 2009, and October 15, 2009, Alabama, Georgia and Tennessee (respectively) submitted attainment demonstrations and associated reasonably available control measures (RACM), reasonable further progress (RFP) plans, contingency measures, a 2002 base year emissions inventory and other planning SIP revisions related to attainment of the 1997 annual PM 2.5 NAAQS in the Chattanooga Area. On May 31, 2011 (76 FR 31239), EPA determined that the Chattanooga Area attained the 1997 annual average PM 2.5 NAAQS. The determination of attainment was based upon complete, quality-assured and certified ambient air monitoring data for the 2007-2009 period, showing that the Area had monitored attainment of the 1997 annual PM 2.5 NAAQS. The requirements for the Area to submit an attainment demonstration and associated RACM, RFP plan, contingency measures, and other planning SIP revisions related to attainment of the standard were suspended as a result of the determination of attainment, so long as the Area continues to attain the 1997 annual PM 2.5 NAAQS. See 40 CFR 51.1004(c).

On June 29, 2011, Georgia withdrew  1 its Chattanooga attainment plan as allowed by 40 CFR 51.1004(c); however, such withdrawal does not suspend the emissions inventory requirement found in CAA section 172(c)(3). Section 172(c)(3) of the CAA requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. EPA is now approving the emissions inventory portion of the SIP revisions submitted on July 31, 2009, October 27, 2009 and October 15, 2009, by Alabama, Georgia and Tennessee (respectively), as required by section 172(c)(3).

As discussed above, section 172(c)(3) of the CAA requires areas to submit a comprehensive, accurate and current inventory of actual emissions from all sources of the relevant pollutant or pollutants in such area. Alabama, Georgia and Tennessee selected 2002 as base year for their emissions inventory per 40 CFR 51.1008(b). Emissions contained in the Chattanooga emissions inventory cover the general source categories of point sources, non-road mobile sources, area sources, on-road mobile sources, and biogenic sources. A detailed discussion of the emissions inventory development can be found in Section 4 of the Alabama submittal, Appendix H of the Georgia submittal, and Appendix 4 of the Tennessee submittal. A summary is also provided below.

The tables below provide a summary of the annual 2002 emissions of nitrogen oxides (NO X ), sulfur dioxide (SO 2 ) and PM 2.5 .

The 172(c)(3) emissions inventory is developed by the incorporation of data from multiple sources. States were required to develop and submit to EPA a triennial emissions inventory according to the Consolidated Emissions Reporting Rule for all source categories (i.e., point, area, nonroad mobile and on-road mobile). This inventory often forms the basis of data that are updated with more recent information and data that also are used in the attainment demonstration modeling inventory. Such was the case in the development of the 2002 emissions inventory that was submitted in each State's attainment SIPs for this Area. The 2002 emissions inventory was based on data developed with the Visibility Improvement State and Tribal Association of the Southeast (VISTAS) contractors and submitted by the States to the 2002 National Emissions Inventory. Several iterations of the 2002 inventories were developed for the different emissions source categories resulting from revisions and updates to the data. This resulted in the use of version G2 of the updated data to represent the point sources' emissions. Data from many databases, studies and models (e.g., Vehicle Miles Traveled, fuel programs, the NONROAD 2002 model data for commercial marine vessels, locomotives and Clean Air Market Division, etc.) resulted in the inventory submitted in these SIPs. The data were developed according to current EPA emissions inventory guidance “Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations” (August 2005) and a quality assurance project plan that was developed through VISTAS and approved by EPA. EPA agrees that the process used to develop these inventories was adequate to meet the requirements of CAA 172(c)(3) and the implementing regulations.

EPA has reviewed the emissions inventories from Alabama, Georgia and Tennessee, and finds that they are adequate for the purposes of meeting section 172(c)(3) emissions inventory requirement for the 1997 annual PM 2.5 standard. The emissions inventories are approvable because the emissions were developed consistent with the CAA, implementing regulations and EPA guidance for emission inventories.

EPA is approving the 2002 base year emissions inventory portion of the SIP revisions submitted by: the State of Alabama on July 31, 2009, the State of Georgia on October 27, 2009 and the State of Tennessee on October 15, 2009. This action is being taken pursuant to section 110 of 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 April 9, 2012 without further notice unless the Agency receives adverse comments by March 9, 2012.

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 April 9, 2012 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 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).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 April 9, 2012. 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).)

40 CFR part 52 is amended as follows:

I. General Information A. Does this action apply to me?

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 174 through the Government Printing Office's e-CFR site at http:// ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), 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-2007-0573 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 April 9, 2012. 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-2007-0573, by one of the following methods:

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

• Mail: 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 April 8, 2009 (74 FR 15969) (FRL-8407-6), 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 tolerance petition (PP 9F7514) by Bayer CropScience LP, P.O. Box 12014, 2 T.W. Alexander Dr., Research Triangle Park, NC 27709. The petition requested that 40 CFR part 174 be amended by establishing an exemption from the requirement of a tolerance for residues of Bacillus thuringiensis Cry2Ae insect control protein and the genetic material necessary for its production in or on all food commodities. This notice referenced a summary of the petition prepared by the petitioner, Bayer CropScience LP, which is available in the docket via http://www.regulations.gov. There were no comments received in response to the notice of filing.

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 exemption is “safe.” Section 408(c)(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. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance exemption 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. * * *” Additionally, section 408(b)(2)(D) of FFDCA requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] * * * residues and other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information 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.

Bayer CropScience LP (Bayer) developed event GHB119 cotton ( Gossypium hirsutum ) to express Bacillus thuringiensis ( Bt ) Cry2Ae insecticidal protein (hereinafter referred to as Cry2Ae protein) for use as a PIP. Event GHB119 cotton was created by Agrobacterium- mediated transformation using plasmid pTEM12. This PIP provides event GHB119 cotton protection against feeding damage by lepidopteran insect larvae. The Organisation for Economic Cooperation and Development (OECD) Unique Identifier for event GHB119 is BCS-GH005-8. The cry2Ae gene was isolated from Bt subspecies dakota and its sequence modified for optimal expression in plants. The cry2Ae gene used in plasmid pTEM12 encodes Cry2Ae insecticidal crystal protein containing 631 amino acids with a molecular weight of 71 kilodaltons.

Bayer's event GHB119 cotton containing the Cry2Ae protein has been in experimental trials since September 1, 2008. The Cry2Ae protein in this cotton is intended to specifically control the larvae of cotton bollworm (CBW, Helicoverpa zea), pink bollworm (PBW, Pectinophora gossypiella), tobacco budworm (TBW, Heliothis virescens), and fall armyworm (FAW, Spodoptera frugiperda).

Event GHB119 cotton also expresses the Phosphinothricin Acetyltransferase (PAT) enzyme, which is exempt from the requirement of a tolerance when used as a PIP inert ingredient in all food commodities (40 CFR 174.522; April 25, 2007; 72 FR 20431; FRL-7742-1). This enzyme confers tolerance of the cotton plants to the herbicide, glufosinate.

1. Acute oral toxicity. The toxicological profile of the protein was previously described in the Federal Register of September 10, 2008 (73 FR 52591; FRL-8380-1) to establish the temporary tolerance exemption for Cry2Ae protein residues in/on cotton food/feed commodities when used as a PIP in cotton (40 CFR 174.530). The petitioner has now requested that EPA establish a permanent exemption from the requirement of a tolerance for residues of Bacillus thuringiensis Cry2Ae protein in or on all food commodities. However, because the submitted exposure analysis was based upon the expression of Bacillus thuringiensis Cry2Ae protein in cotton only and because no other uses of this protein as a PIP exist in connection with any other food or animal feed commodities, the final tolerance exemption for Cry2Ae protein residues that the Agency is granting varies from what the petitioner sought in as much as it is limited to residues of Cry2Ae protein in/on the cotton food/feed commodities specifically listed in the tolerance exemption regulatory text when Cry2Ae protein is used as a PIP in cotton. Further explanation is provided in Unit VII.C.

Consistent with section 408(b)(2)(D) of the FFDCA, EPA reviewed the available scientific data and other relevant information submitted in support of these actions and considered their validity, completeness and reliability, and the relationship of this information to human risk. The health effects data previously reviewed in support of the temporary tolerance exemption (Ref. 1) and additional data on the PIP in question that was previously evaluated in 2011 (Ref. 2) support the establishment of this permanent tolerance exemption for residues of Cry2Ae protein in/on the specifically noted cotton food/feed commodities when Cry2Ae protein is used as a PIP in cotton. When proteins are toxic, they are known to act via acute mechanisms and at very low dose levels (Ref. 3.) An acute oral toxicity (Tier I) study in mice indicated that Cry2Ae protein is non-toxic to mammals (Master Record Identification (MRID) 47076902; Ref. 1). The acute oral toxicity of Cry2Ae protein was assessed by administering 2000 milligrams/kilogram (mg/kg) body weight of bacterially produced Cry2Ae protein test substance to five female mice by oral gavage. All treated animals gained weight and had no clinical signs or findings at necropsy related to the test material. The acute oral LD 50 of the Cry2Ae protein is greater than 2,000 mg/kg body weight. (Refs. 1 and 2). These data demonstrate the safety of Cry2Ae protein at a level well above maximum possible parts per million (ppm) exposure levels that are reasonably anticipated in the cotton food/feed commodities covered by this tolerance exemption. Since no acute effects were shown to be caused by Cry2Ae protein, even at such relatively high dose levels, the Cry2Ae protein is not considered toxic. Furthermore, amino acid sequence comparisons showed no similarities between the Cry2Ae protein and known toxic proteins in protein databases that would raise a safety concern.

For microbial products, Tier II and III toxicity testing and residue data are required to verify and clarify any adverse effects observed during Tier I testing. Based on the lack of acute oral toxicity and the absence of adverse effects in the Tier I acute oral toxicity test in mice, EPA did not require Tier II and Tier III testing or residue data for Cry2Ae protein. This conclusion is similar to the Agency position regarding toxicity testing and the requirement of residue data for the microbial Bacillus thuringiensis products from which this PIP was derived (see 40 CFR 158.2130(d)(1)(i) and 158.2140(d)(7)).

2. Allergenicity assessment. Since Cry2Ae is a protein, allergenic sensitivities were considered. Currently, no definitive tests exist for determining the allergenic potential of novel proteins. Therefore, EPA uses a weight-of-evidence approach where the following factors are considered: Source of the trait; amino acid sequence similarity with known allergens; prevalence in food; and biochemical properties of the protein, including in vitro digestibility in simulated gastric fluid (SGF), and glycosylation of the protein as recommended by the Codex Alimentarius Commission, 2003 (Ref. 4).

Summary level findings of note from the allergenicity assessment for Cry2Ae protein (see Refs. 1, 2, and 5) include:

i. Source of the trait. Bacillus thuringiensis, the microorganism from which Cry2Ae protein is derived, is not considered to be a source of allergenic proteins (MRID 47125101 and 47641912, Refs. 6 and 7).

ii . Amino acid sequence. A comparison of the amino acid sequence of Cry2Ae protein with known allergens showed no overall sequence similarity meeting the standards for potential allergenicity (i.e., 35% identity over an 80 amino acid segment, and 100% sequence identity at the level of 8 amino acids, the smallest number of amino acids needed to cause an allergic response (MRIDs 47641908 and 47641909)). These results demonstrated that an individual exposed to the Cry2Ae protein in the diet would not be expected to experience an allergic reaction.

iii. Prevalence in food. Food allergens may be present at high concentrations (Ref. 4); however, protein expression level analyses showed that Cry2Ae protein in cotton is expressed at relatively low levels, in the ppm range (MRID 47641903). Furthermore, cotton products comprise only a small part of the human diet. Consequently, dietary exposure to Cry2Ae protein expressed in cotton would be extremely limited.

iv. Digestibility. Common food allergens tend to be resistant to degradation by acid and proteases (Ref. 4). The Cry2Ae protein was rapidly digested (within 30 seconds) in SGF containing pepsin at a pH of 1.2 (MRID 47125102). Because it is quickly degraded, dietary exposure to the whole protein is low. Consequently, the potential for sensitivity is low.

v. Glycosylation. Current scientific knowledge (Ref. 4) suggests that common food allergens may be glycosylated. The Cry2Ae protein expressed in cotton is not glycosylated (MRIDs 48471901 and 48480006), and so does not share this characteristic of some allergens.

All these preceding characteristics are part of the weight-of-evidence approach to determine that a protein is not expected to be an allergen. Considering all of the available information, EPA has concluded that the potential for Cry2Ae protein to be a food allergen is minimal.

In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

The Agency considered available information on the aggregate exposure levels of consumers (including major identifiable subgroups of consumers) to the PIP residue and to other related substances. These considerations include dietary exposure under the tolerance exemption and all other tolerances or exemptions in effect for the PIP residue, and exposure from non-occupational sources.

As previously discussed (Unit III.), the oral toxicity studies conducted at a dose of 2,000 mg/kg testing showed no adverse effects for Cry2Ae protein, which was also shown to be rapidly digested in vitro. As previously stated, when Cry2Ae protein is used as a PIP in cotton, it is expressed at very low levels in the cotton. Although cotton is not a directly consumed food commodity, humans may be exposed to extremely low levels in the diet, potentially from ingestion of processed cotton products (e.g., cottonseed flour and oil). There is also a very remote possibility that Cry2Ae protein can get in the water supply the same way that other proteins in crop debris can migrate into the ground, and, possibly, drinking water. Because such potential dietary exposure from cotton or drinking water is expected to be several orders of magnitude lower than the amounts of these proteins shown to have no toxicity in mammalian tests, EPA concludes that even negligible exposure via food and drinking water would present no harm, based on the lack of mammalian toxicity and allergenicity potential, and the rapid digestibility demonstrated in SGF for the PIP.

Non-occupational dermal and inhalation exposure is not expected, since the PIP is expressed and contained within cotton plant cells. The uses of this PIP are agricultural, so there would be no exposure to infants and children from residential, school or lawn use. The amino acid sequence homology of known aeroallergens was included in the amino acid comparison of Cry2Ae protein with known food allergens, and the results indicated that no respiratory allergencity would be expected if Cry2Ae protein were inhaled. The amino acid sequence results are discussed in more detail in Unit III.B.2.ii., above. It has been demonstrated that there is no evidence of occupationally related respiratory symptoms, based on a health survey on migrant workers, after exposure to Bt pesticides (Ref. 7). This observation is also relevant to the low potential for non-occupational inhalation exposure at levels far below those expected in occupationally exposed populations.

Taking all these data and information into consideration, EPA concludes that even if negligible aggregate exposure should occur it would present no harm to the U.S. human population.

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 Bacillus thuringiensis Cry2Ae protein to share a common mechanism of toxicity with any other substances, and Bacillus thuringiensis Cry2Ae protein does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that Bacillus thuringiensis Cry2Ae protein 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.

To evaluate human risk, EPA considered the validity, completeness, and reliability of the available data from the studies cited in Unit III. regarding potential health effects for Cry2Ae protein. This evaluation included the low levels of expression of Cry2Ae proteins in cotton, as well as the lack of acute oral toxicity at high dose levels, heat stability, and in vitro digestibility of this protein. EPA also considered the minimal potential for allergenicity and the non-toxic source of the protein. Because of this lack of demonstrated mammalian toxicity, no protein residue chemistry data for Cry2Ae protein were required for a human health effects assessment.

Finally, and specifically with regards to infants and children, FFDCA section 408(b)(2)(C) provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold 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 data base, unless EPA determines that a different margin of safety will be safe for infants and children.

Based on its review and consideration of all the available information, as discussed in Units III. and IV. in this document, EPA concluded that there are no threshold effects of concern and, as a result, that an additional margin of safety for infants and children is unnecessary in this instance.

EPA has determined that an analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation. Nonetheless, Bayer has submitted an analytical method using enzyme-linked immunosorbent assay (ELISA) analyses for the qualitative detection of Cry2Ae proteins in cotton seed and cotton leaf. Although validation studies showed the test kit can detect Cry2Ae protein in cotton with sufficient accuracy, precision, and sensitivity, a method validation study conducted by an independent third party laboratory to evaluate the ELISA test kit's performance as the designated analytical method for the detection of Cry2Ae protein residues expressed in event GHB119 cotton is still required.

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. In this context, 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 Bacillus thuringiensis Cry2Ae protein in cotton.

The petitioner requested that EPA establish a permanent exemption from the requirement of a tolerance for residues of Bacillus thuringiensis Cry2Ae protein in or on all food commodities. A temporary tolerance exemption was previously granted to Bayer for cotton food/feed commodities in association with an Experimental Use Permit, EPA Reg. No. 264-EUP-143 published on September 10, 2008 (73 FR 52591; FRL-8380-1). That exposure analysis and evaluation of additional data to establish this permanent exemption from tolerance are based upon the expression of Bacillus thuringiensis Cry2Ae protein in cotton. No other uses of this protein as a PIP in other food or animal feed commodities exist. As a result, there has been no effort to date to ensure that transformation events in plants other than cotton that express Cry2Ae protein have the same safety characteristics as those described in this evaluation. Consequently, the final tolerance exemption for Cry2Ae protein residues that the Agency is granting varies from what the petitioner sought in as much as it is limited to residues of Cry2Ae protein in/on certain cotton food/feed commodities when Cry2Ae protein is used as a PIP in cotton.

EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Bacillus thuringiensis Cry2Ae protein in cotton food/feed commodities. An exemption from the requirement of a tolerance is therefore established for residues of Bacillus thuringiensis Cry2Ae protein in or on the food or feed commodities of cotton; cotton, undelinted seed; cotton, gin byproducts; cotton, forage; cotton, hay; cotton, hulls; cotton, meal; and cotton, refined oil, when used as a PIP in these food and feed commodities.

This final rule establishes a tolerance exemption 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 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. As a result, this action does not 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).

Therefore, 40 CFR chapter I is amended as follows:

You may be potentially affected by this action if you manufacture, import, process, or use the chemical substance identified generically as tris carbamoyl triazine (PMN P-95-1098). Potentially affected entities may include, but are not limited to:

Manufacturers, importers, or processors of the subject chemical substance (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

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. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in § 721.5. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to a SNUR must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export the chemical substance that is the subject of a proposed or final SNUR are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

EPA is finalizing an amendment to the SNUR for the chemical substance identified generically as tris carbamoyl triazine (PMN P-95-1098) codified at 40 CFR 721.9719. This final action requires persons who intend to manufacture, import, or process the chemical substance for an activity that is designated as a significant new use by this final rule to notify EPA at least 90 days before commencing that activity.

This rule was proposed in the Federal Register issue of August 3, 2011 (76 FR 46678) (FRL-8878-3). EPA received no public comments in response to the proposal. Therefore, the Agency is issuing a final SNUR, as proposed that:

1. Identifies those forms of the PMN substance that are exempt from the provisions of the SNUR. These exemptions apply to quantities of the PMN substance after it has been completely reacted (cured).

2. Adds protection in the workplace requirements under § 721.63 for respiratory protection and alternative New Chemical Exposure Limit (NCEL) exposure monitoring to address the newly-identified potential risks from inhalation exposure in the workplace.

3. Revises the hazard communication requirements under § 721.72 to add the human health hazard and exposures and remove the environmental hazards and exposures.

4. Removes all release to water requirements under § 721.90.

5. Revises the recordkeeping requirements under § 721.125 to reflect the modified significant new uses.

Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors, listed in Unit IV. of this document. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture, import, or process the chemical substance for that use. Persons who must report are described in § 721.5.

During review of PMN P-95-1098, the chemical substance identified generically as tris carbamoyl triazine, EPA concluded that regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of this chemical substance. The basis for such findings is outlined in Unit II. of the proposed rule to amend this SNUR, included in the Federal Register issue of August 3, 2011 (76 FR 46678) and in the Federal Register document of August 20, 1998 (63 FR 44562) (FRL-5788-7). Based on these findings, a TSCA section 5(e) consent order requiring the use of appropriate exposure controls was negotiated with the PMN submitter. The SNUR provisions for this chemical substance were consistent with the provisions of the original TSCA section 5(e) consent order. The SNUR was promulgated pursuant to § 721.160.

After the review of test data submitted pursuant to the TSCA section 5(e) consent order for PMN P-95-1098 (see Unit II. of the proposed rule) and consideration of the factors included in TSCA section 5(a)(2) (see Unit IV. of this document), EPA determined that the chemical substance may pose an unreasonable risk to human health, but also that the finding that certain activities involving the substance may present an unreasonable risk to the environment was no longer supported. Consequently, EPA is finalizing this modification to the SNUR at § 721.9719 according to procedures in § 721.160 and § 721.185, so that SNUR provisions for this chemical substance remain consistent with the provisions of the TSCA section 5(e) consent order, as modified.

Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorizes EPA to consider any other relevant factors. To determine what would constitute a significant new use for the chemical substance identified generically as tris carbamoyl triazine (PMN P-95-1098), EPA considered relevant information about the toxicity of the chemical substance, likely human exposures and environmental releases associated with possible uses, taking into consideration the four bulleted TSCA section 5(a)(2) factors listed in this unit.

As discussed in the Federal Register issue of April 24, 1990 (55 FR 17376), EPA has decided that the intent of TSCA section 5(a)(1)(B) is best served by designating a use as a significant new use as of the date of publication of the proposed SNUR rather than as of the effective date of the final rule. If uses begun after publication were considered ongoing rather than new, it would be difficult for EPA to establish SNUR notice requirements, because a person could defeat the SNUR by initiating the proposed significant new use before the rule became effective, and then argue that the use was ongoing as of the effective date of the final rule.

Any persons who began commercial manufacture, import, or processing activities with the chemical substance identified generically as tris carbamoyl triazine (PMN P-95-1098), for any of the significant new uses designated in the proposed SNUR modification after the date of publication of the proposed SNUR, must stop that activity before the effective date of this final rule. Persons who ceased those activities will have to meet all SNUR notice requirements and wait until the end of the notice review period, including all extensions, before engaging in any activities designated as significant new uses.

EPA has promulgated provisions to allow persons to comply with this SNUR before the effective date. If a person were to meet the conditions of advance compliance under §  721.45(h), the person would be considered to have met the requirements of this final SNUR for those activities.

EPA recognizes that TSCA section 5 does not require the development of any particular test data before submission of a SNUN. There are two exceptions:

1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).

2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).

In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see § 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In this case, EPA recommends persons, before performing any testing, to consult with the Agency pertaining to protocol selection.

The recommended testing specified in Unit II.A. of the proposed rule may not be the only means of addressing the potential risks of the chemical substance. However, SNUNs submitted without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

• Potential benefits of the chemical substances.

• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.

According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notice requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in § 720.50. SNUNs must be on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in §§ 721.25 and 720.40. E-PMN software is available electronically at http://www.epa.gov/opptintr/newchems.

EPA evaluated the potential costs of establishing SNUN requirements for potential manufacturers, importers, and processors of the chemical substance during the development of the direct final rule. The Agency's complete Economic Analysis is available in the docket under docket ID number EPA-HQ-OPPT-2011-0108.

This action modifies a SNUR for a chemical substance that is the subject of a PMN and TSCA section 5(e) consent order. 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).

According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., an Agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency hereby certifies that promulgation of this modified SNUR will not have a significant adverse economic impact on a substantial number of small entities. The rationale supporting this conclusion is discussed in this unit. The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the rule as a “significant new use.” Because these uses are “new,” based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. Although some small entities may decide to pursue a significant new use in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a handful of notices per year. For example, the number of SNUNs was four in Federal fiscal year 2005, eight in FY 2006, six in FY 2007, eight in FY 2008, and seven in FY 2009. During this five-year period, three small entities submitted a SNUN. In addition, the estimated reporting cost for submission of a SNUN (see Unit VIII.) is minimal regardless of the size of the firm. Therefore, EPA believes that the potential economic impacts of complying with this modified SNUR is not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published in the Federal Register issue of June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that final SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this final rule. As such, EPA has determined that this final rule does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any affect on small governments subject to the requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

This action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999).

This final rule does not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This final rule does not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000), do not apply to this final rule.

This action is not subject to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

This action 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), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.

In addition, since this action does not involve any technical standards, 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), does not apply to this action.

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

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 the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR part 721 is amended as follows:

This document announces that, on January 30, 2012, OMB approved, for a period of three years, the information collection requirements relating to the program carriage rules contained in the Commission's Second Report and Order, FCC 11-119, published at 76 FR 60652, September 29, 2011. The OMB Control Number is 3060-0888. The Commission publishes this notice as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-0888, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov .

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on January 30, 2012, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR parts 1 and 76.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0888.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0888.

OMB Approval Dates: January 30, 2012.

OMB Expiration Date: January 31, 2015.

Title: Section 1.221, Notice of hearing; appearances; Section 1.229 Motions to enlarge, change, or delete issues; Section 1.248 Prehearing conferences; hearing conferences; Section 76.7, Petition Procedures; Section 76.9, Confidentiality of Proprietary Information; Section 76.61, Dispute Concerning Carriage; Section 76.914, Revocation of Certification; Section 76.1001, Unfair Practices; Section 76.1003, Program Access Proceedings; Section 76.1302, Carriage Agreement Proceedings; Section 76.1513, Open Video Dispute Resolution.

Form Number: N/A.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 668 respondents; 668 responses.

Estimated Time per Response: 6.1 to 90.5 hours.

Frequency of Response: On occasion reporting requirement, Third party disclosure requirement.

Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this information collection is contained in Sections 4(i), 303(r), and 616 Communications Act of 1934, as amended.

Total Annual Burden: 32,264 hours.

Total Annual Cost: $2,705,400.

Nature and Extent of Confidentiality: An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information (PII) from individuals.

Needs and Uses: On August 1, 2011, the Commission adopted a Second Report and Order, Leased Commercial Access; Development of Competition and Diversity in Video Programming Distribution and Carriage, MB Docket No. 07-42, FCC 11-119. In the Second Report and Order, the Commission took initial steps to improve the procedures for addressing program carriage complaints by: (i) Codifying in the Commission's rules what a program carriage complainant must demonstrate in its complaint to establish a prima facie case of a program carriage violation; (ii) providing the defendant with 60 days (rather than the current 30 days) to file an answer to a program carriage complaint; (iii) establishing deadlines for action by the Media Bureau and Administrative Law Judges (“ALJ”) when acting on program carriage complaints; and (iv) establishing procedures for the Media Bureau's consideration of requests for a temporary standstill of the price, terms, and other conditions of an existing programming contract by a program carriage complainant seeking renewal of such a contract.

The following rule sections contain new or revised information collection requirements and the Commission received final approval for the requirements from the Office of Management and Budget (OMB) on January 30, 2012:

47 CFR 1.221(h) requires that, in a program carriage complaint proceeding filed pursuant to Section 76.1302 that the Chief, Media Bureau refers to an administrative law judge for an initial decision, each party, in person or by attorney, shall file a written appearance within five calendar days after the party informs the Chief Administrative Law Judge that it elects not to pursue alternative dispute resolution pursuant to Section 76.7(g)(2) or, if the parties have mutually elected to pursue alternative dispute resolution pursuant to Section 76.7(g)(2), within five calendar days after the parties inform the Chief Administrative Law Judge that they have failed to resolve their dispute through alternative dispute resolution. The written appearance shall state that the party will appear on the date fixed for hearing and present evidence on the issues specified in the hearing designation order.

47 CFR 1.229(b)(3) requires that, in a program carriage complaint proceeding filed pursuant to Section 76.1302 that the Chief, Media Bureau refers to an administrative law judge for an initial decision, a motion to enlarge, change, or delete issues shall be filed within 15 calendar days after the deadline for submitting written appearances pursuant to Section 1.221(h), except that persons not named as parties to the proceeding in the designation order may file such motions with their petitions to intervene up to 30 days after publication of the full text or a summary of the designation order in the Federal Register .

47 CFR 1.229(b)(4) provides that any person desiring to file a motion to modify the issues after the expiration of periods specified in paragraphs (a), (b)(1), (b)(2), and (b)(3) of 47 CFR 1.229, shall set forth the reason why it was not possible to file the motion within the prescribed period.

47 CFR 1.248(a) provides that the initial prehearing conference as directed by the Commission shall be scheduled 30 days after the effective date of the order designating a case for hearing, unless good cause is shown for scheduling such conference at a later date, except that for program carriage complaints filed pursuant to Section 76.1302 that the Chief, Media Bureau refers to an administrative law judge for an initial decision, the initial prehearing conference shall be held no later than 10 calendar days after the deadline for submitting written appearances pursuant to Section 1.221(h) or within such shorter or longer period as the Commission may allow on motion or notice consistent with the public interest.

47 CFR 1.248(b) provides that the initial prehearing conference as directed by the presiding officer shall be scheduled 30 days after the effective date of the order designating a case for hearing, unless good cause is shown for scheduling such conference at a later date, except that for program carriage complaints filed pursuant to Section 76.1302 that the Chief, Media Bureau refers to an administrative law judge for an initial decision, the initial prehearing conference shall be held no later than 10 calendar days after the deadline for submitting written appearances pursuant to Section 1.221(h) or within such shorter or longer period as the presiding officer may allow on motion or notice consistent with the public interest.

47 CFR 76.7(g)(2) provides that, in a proceeding initiated pursuant to Section 76.7 that is referred to an administrative law judge, the parties may elect to resolve the dispute through alternative dispute resolution procedures, or may proceed with an adjudicatory hearing, provided that the election shall be submitted in writing to the Commission and the Chief Administrative Law Judge.

47 CFR 76.1302(c)(1) provides that a program carriage complaint filed pursuant to Section 76.1302 must contain the following: whether the complainant is a multichannel video programming distributor or video programming vendor, and, in the case of a multichannel video programming distributor, identify the type of multichannel video programming distributor, the address and telephone number of the complainant, what type of multichannel video programming distributor the defendant is, and the address and telephone number of each defendant.

47 CFR 76.1302(d) sets forth the evidence that a program carriage complaint filed pursuant to Section 76.1302 must contain in order to establish a prima facie case of a violation of Section 76.1301.

47 CFR 76.1302(e)(1) provides that a multichannel video programming distributor upon whom a program carriage complaint filed pursuant to Section 76.1302 is served shall answer within sixty (60) days of service of the complaint, unless otherwise directed by the Commission.

47 CFR 76.1302(k) permits a program carriage complainant seeking renewal of an existing programming contract to file a petition along with its complaint requesting a temporary standstill of the price, terms, and other conditions of the existing programming contract pending resolution of the complaint, to which the defendant will have the opportunity to respond within 10 days of service of the petition, unless otherwise directed by the Commission. To allow for sufficient time to consider the petition for temporary standstill prior to the expiration of the existing programming contract, the petition for temporary standstill and complaint shall be filed no later than thirty (30) days prior to the expiration of the existing programming contract.

This is a synopsis of the Commission's Report and Order, MB Docket No. 11-192, adopted January 26, 2012, and released January 27, 2012. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC, 20554. This document will also be available via ECFS ( http://fjallfoss.fcc.gov/ecfs/ ). This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1-(800) 478-3160 or via the company's Web site, http://www.bcipweb.com. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

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

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR Part 73 as follows:

I. Background

Pursuant to § 402 of the Rail Safety Improvement Act of 2008, Public Law 110-432, 122 Stat. 4884, (Oct. 16, 2008) (codified at 49 U.S.C. 20163) (hereinafter “RSIA”) Congress required the Secretary of Transportation (Secretary) to prescribe regulations to establish a program requiring the certification of train conductors. The Secretary delegated this authority to the Federal Railroad Administrator. 49 CFR 1.49(oo).

On December 10, 2008, FRA's Railroad Safety Advisory Committee (RSAC) accepted a task statement (No. 08-07) and agreed to establish the RSAC Conductor Certification Working Group (Working Group) whose overall purpose was to recommend to the full committee regulations responsive to the RSIA's mandate concerning the certification of railroad conductors.

The Working Group reached consensus on all of its recommended regulatory provisions. On March 18, 2010, the Working Group presented its recommendations to the full RSAC for concurrence. All of the members of the full RSAC in attendance at the March meeting accepted the regulatory recommendations submitted by the Working Group. Thus, the Working Group's recommendations became the full RSAC's recommendations to FRA.

Based on the recommendations of the RSAC, FRA published a Notice of Proposed Rulemaking (NPRM) in the Federal Register on November 10, 2010. See 75 FR 69166. In the NPRM, FRA solicited public comment on the proposed rule and notified the public of its option to request a public hearing on the NPRM. In addition, FRA also invited comment on a number of specific issues related to the proposed requirements for the purpose of developing the final rule. In response to the NPRM, FRA received written comments as well as advice from the Working Group in preparing a final rule which was published on November 9, 2011. See 76 FR 69802.

Following publication of the final rule, parties filed petitions seeking FRA's reconsideration of the rule's requirements—the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the United Transportation Union (UTU) submitted a joint petition (BLET/UTU Petition) and the Association of American Railroads, the American Public Transportation Association, and the American Short Line and Regional Railroad Association submitted a joint petition (AAR Petition). These petitions principally relate to the following subject areas: the implementation dates; 49 CFR part 217 and 218 testing; conductor assistants on main track; and the appeals process. In addition to the issues raised in the petitions, clarification of the final rule is needed with respect to the applicability of the rule to those persons who perform what have traditionally been known as hostler assignments.

This document responds to all the issues raised in the petitions for reconsideration and amends and clarifies certain sections of the final rule. The amendments contained in this document generally clarify the requirements contained in the final rule or allow for greater flexibility in complying with the rule, and are within the scope of the issues and options discussed, considered, or raised in the NPRM.

The AAR Petition requests that the implementation dates in the final rule be extended because: (1) They are inconsistent with the anticipated timeline provided in the NPRM; (2) they are inconsistent with the timing of railroad training; and (3) they do not permit enough time for training, testing and evaluating conductors. In the NPRM, FRA stated that it was proposing an effective date of January 1, 2012 for the final rule “based on FRA's anticipation that the final rule will be published in early 2011.” Since the final rule was published in late 2011 (about 6 months after the anticipated publication date), the Petition argues that the implementation dates should be adjusted accordingly.

According to the Petition, railroads typically formulate their training programs in the fall and their trainers have to be prepared at the beginning of the year. The implementation dates in the final rule do not permit sufficient time to implement their training programs or to make pertinent changes to their IT systems used to comply with the regulations. According to the Petition, it takes an average of 6 months to train a conductor. However, the period between the likeliest program approval date ( i.e., April 29) and the date that Class I's must test and evaluate conductors ( i.e., June 1) leaves only one month to test and evaluate conductors. Further, the Petition notes that FRA has adjusted implementation dates of previous rulemakings to comport with railroad training schedules ( e.g., Part 218).

FRA acknowledges that the final rule was published later than anticipated. Therefore, to provide a reasonable amount of time for the railroads to implement their training programs, FRA is retaining the current effective date of the final rule ( i.e., January 1, 2012) but is extending the implementation dates by 6 months. For the convenience of interested parties, a table is provided below showing the changes to the implementation dates:

The AAR Petition requests that FRA clarify that testing under 49 CFR part 217 and 218 is not affected by the final rule. In the preamble to the final rule, FRA noted that a railroad could not test and evaluate a designated conductor or conductor candidate under subpart B of the final rule until the railroad had a certification program approved by FRA. According to the AAR Petition, that prohibition combined with § 242.123(c), which requires that each conductor shall be given at least one unannounced compliance test annually in accordance with parts 217 and 218, presents a potential timing issue that may leave railroads with insufficient time to conduct part 217/218 testing.

FRA acknowledges that a railroad that follows the schedule provided in the final rule may not have sufficient time to conduct part 217/218 testing pursuant to the final rule if it is not permitted to test prior to having an approved program in place. Moreover, parts 217 and 218 provide testing procedures that railroads must follow irrespective of whether they have a conductor certification program in place. Thus, FRA is clarifying the final rule to indicate that part 217/218 testing is not covered by the final rule's statement regarding testing prior to the approval of a program.

The AAR Petition requests that § 242.301(c) of the final rule be amended to remove the requirement for a non-crewmember to serve as a conductor's assistant on main track where the conductor lacks territorial qualification on the main track physical characteristics. The AAR Petition asserts that the final rule should be amended because: (1) The changes regarding the assistant were made at the final rule stage and were not what was agreed to at the RSAC; (2) the rule is inconsistent with the position that UTU had taken outside of the regulatory process ( i.e., a 2010 agreement with CSX which purportedly permits an engineer, who is a member of the crew, to serve as an assistant for a conductor unfamiliar with the territory over which the train is operating); (3) FRA failed to conduct a cost-benefit analysis of its prohibition on the engineer serving as an assistant on main track which will cost the industry millions of dollars annually by requiring an extra person in the cab to serve as a conductor or by requiring the industry to take conductors on “pilot trips”; (4) the rule could adversely affect passenger railroad finances and services because of delays, cancelations, train evacuations, and platform crowding if no employee is available who is not a member of the crew to serve as the conductor's assistant; and (5) FRA failed to demonstrate measurable safety benefits of the rule and no safety benefit exists. The AAR petition asserts that it is “particularly egregious” to prohibit the engineer from serving as the assistant to the conductor in circumstances where the conductor was previously qualified over the territory but whose qualification has lapsed.

Although the final rule modified the requirements proposed in the NPRM regarding assistants on main track, FRA believes that safety concerns ( i.e., the safe operation of a train in difficult operating environments on main track combined with the need to maintain the roles of each crewmember in those situations) necessitate the need to modify those requirements. A conductor, who has never been qualified on the physical characteristics of the territory, would not have the knowledge to be able to fulfill his or her role on the train and an assigned crew member serving as an assistant would be distracted from their other duties and may not be able to provide a check on the judgments of the other crew members. In addition, there are some unique situations on main track which highlight the need for an assistant that is familiar with the territory and can provide a check on the engineer with respect to safe operation of the train over the territory. For example, terminals that serve as multiple hubs where conductors can be sent in multiple directions over main track where they are required to negotiate multiple signal systems each governed by a different set of rules.

The conductor plays a key role in rail operations by, inter alia, determining the train consist, ensuring compliance with hazardous materials placement and documentation requirements, calling or acknowledging signals, receiving mandatory directives, conducting frequent briefings with the locomotive engineer to ensure compliance with movement restrictions, intervening through use of the conductor's brake valve if the engineer is unresponsive or incapacitated, and using their knowledge of the operating environment to identify safety concerns and resolve them. See, e.g., General Code of Operating Rules section 1.47 and NORAC Operating Rules rule 94 and 941. Within this framework, a conductor must remain able to provide a check on the judgments made by another crew member.

Each railroad is free, within the constraints of collective bargaining agreements as to staffing, and subject to oversight by FRA with respect to safety, to determine its operating rules and assignment of responsibilities to its personnel. Nevertheless, FRA remains concerned that railroad operating crews function as a team, discharging their responsibilities on the basis of adequate information and using their knowledge of the operating environment to identify safety concerns and resolve them. Within this framework, each crew member must remain able to respectfully and helpfully question a judgment by another crew member. This general approach is known as “crew resource management” (CRM), a concept perfected in aviation and urgently pressed on the railroad industry by the National Transportation Safety Board and the FRA. See NTSB Recommendation R-99-13 (July 29, 1999). Major railroads have included CRM in their training programs.

It is particularly important that a conductor have an assistant who is not distracted either by or from their other duties now that conductors may be decertified for actions they take or fail to take during the operation of a train. Indeed, this rulemaking is holding conductors to a higher level of accountability and requiring more severe consequences for failing to meet that level than they have ever faced before. Accordingly, principles of fairness and safety dictate that conductors be provided all the tools, knowledge, and oversight needed to meet this higher level of accountability. Providing the proper tools, knowledge, and oversight should, in turn, create an even safer operating environment particularly where an assigned crew member is serving as the assistant. A more knowledgeable conductor will likely allow an assistant to focus less on assisting the conductor and more on their other duties. Similarly, in instances where a conductor is less familiar with a territory, there is a greater necessity to provide that conductor with an assistant that is not distracted by other duties.

Principles of fairness and safety also dictate that an engineer, who is directly responsible for operating the train and also subject to decertification, not be required to act as an assistant to a conductor, who possesses insufficient knowledge of the territory. Requiring an engineer to provide extensive assistance to a conductor could potentially result in that engineer being distracted from other safety critical duties. FRA's decision on this issue must be based on safety considerations and should not be impacted by what a railroad and representatives of its employees may have agreed to in the past, particularly when the level of accountability was not as high as it is now.

Although the AAR Petition asserts that the final rule's prohibition on an assigned locomotive engineer serving as a conductor's assistant on main track where the conductor lacks territorial qualification on the main track physical characteristics will “cost the industry millions of dollar[s] annually” by requiring an extra person in the cab or by requiring railroads to take conductors on “pilot trips,” the Petition does not provide evidentiary support for its assertion or an explanation of how it calculated the additional cost it claims the rule will require. Without this information, FRA cannot compare or respond to the cost claim. 1 However, contrary to the AAR Petition's assertion, FRA did, in fact, conduct an economic analysis of the final rule's prohibition on a locomotive engineer serving as a conductor's assistant on main track and included additional costs in its analysis of the final rule. In the final rule's Regulatory Impact Analysis, a copy of which was placed in the docket on http://www.regulations.gov, FRA explained that:

FRA recognizes the passenger railroads' concerns regarding the potential economic and service impact of prohibiting a crewmember from serving as an assistant in certain situations, but notes that passenger railroads have successfully dealt with a similar issue with locomotive engineers under part 240 for many years without excessive financial burdens or service delays being incurred. 2 Moreover, FRA expects this situation to be a relatively rare occurrence for passenger railroads. 3

While FRA declines to revise the requirement in the final rule requiring a non-crewmember to serve as a conductor's assistant on main track where the conductor has never been qualified on the main track physical characteristics of the territory over which he or she is to serve as a conductor, FRA believes that it can provide some flexibility to the railroads with respect to conductors whose qualifications have been expired for one year or less and who have regularly traversed the territory prior to the expiration of the qualifications. In that scenario, the safety concerns are reduced because it is likely that the assistant would need only to provide minimal assistance to the conductor due to the conductor's familiarity with the physical characteristics of the territory.

For a conductor who was previously qualified on main track physical characteristics of the territory over which he or she is to serve as a conductor, but whose qualification has been expired for one year or less and who regularly traversed the territory prior to the expiration of the qualification, this response provides that the assistant may be any person, including an assigned crewmember, who meets the territorial qualification requirements for main track physical characteristics. For a conductor whose qualification has been expired for one year or less but who has not regularly traversed the territory prior to the expiration of the qualification, or a conductor whose territorial qualification on main track has been expired for more than a year, this response provides that the assistant may be any person, including an assigned crewmember other than the locomotive engineer so long as serving as the assistant would not conflict with that crewmember's other safety sensitive duties, who meets the territorial qualification requirements for main track physical characteristics.

In order to determine when a conductor's territorial qualification has expired and whether the conductor regularly traversed the territory prior to the expiration of the qualification, FRA is requiring that each railroad indicate in its program how long a conductor must be absent from a territory before the conductor's qualification on the physical characteristics of the territory expires and the number of times a person must pass over a territory per year to be considered to have “regularly traversed” a territory for purposes of § 242.301(c). FRA believes that those requirements will help ensure that conductors travel over a territory with sufficient regularity to maintain knowledge of the physical characteristics. Further discussion of those requirements is contained below in the analysis of the revisions to Appendix B of part 242.

The BLET/UTU Petition requests reconsideration of FRA's decision not to adopt the BLET/UTU's proposal for changing the appeals process provided in §§ 242.501, 503, 505, 507, 509 and 511 of the final rule. The proposal would eliminate appeals to an Administrative Hearing Officer (AHO), except in cases where the Operating Crew Review Board (OCRB) or a party wants a specific issue developed further, require the OCRB to grant a decision if any procedural error by the railroad is shown, add an attorney as a member to the OCRB, eliminate the opportunity for parties to appeal FRA decisions to the Administrator, and make the OCRB decision final agency action. According to the BLET/UTU Petition, the proposal will make the appeals process more balanced, efficient, and less costly.

FRA declines to adopt BLET/UTU's proposed revisions to the appeals process. The proposed appeals process was thoroughly discussed during the Working Group meetings and most of BLET/UTU's suggestions were rejected at those meetings. As explained to the Working Group and indicated in the preamble to the final rule, due process requirements and issues concerning trials de novo necessitate that FRA retain the OCRB and AHO as distinct levels of review. Moreover, despite BLET/UTU's assertions to the contrary, FRA continues to believe that the BLET/UTU proposal would result in a significant increase in the number of cases/issues handled by the AHO and the federal courts thereby causing cases to take much longer to resolve and involve increased costs for all parties involved.

Although FRA is not adopting BLET/UTU's proposals, FRA is committed to handling engineer and conductor certification cases as quickly as possible and is taking steps to make the appeals process more efficient. Over the past two years, the average length of time for the AHO to render a decision in a locomotive engineer case under part 240 has dropped by 6 months. One of the steps FRA has taken is to revise the requirements proposed in the NPRM to require petitions to be submitted to the Docket Clerk of DOT rather than FRA's Docket Clerk. With that change, the process for submitting petitions to the OCRB will parallel the process for requesting an administrative hearing under part 240 and § 242.507. FRA believes this change will make the process more efficient as DOT Dockets is better equipped to process and store these types of filings.

Following the publication of the final rule, it was brought to FRA's attention that the final rule may be unclear regarding the applicability of the rule to those persons who perform what have traditionally been known as hostler assignments. Those assignments typically involve moving locomotives within the confines of a locomotive servicing area or car repair shop area.

FRA did not intend for a person performing those types of assignments to be covered by the requirements of part 242. As FRA stated in the section-by-section analysis of the Final Rule, “[a]ll other train or yard crew members ( e.g., assistant conductors, brakemen, hostlers, trainmen, switchmen, utility persons, flagmen, yard helpers, and others who might have different job titles but perform similar duties and are not in charge of a train or yard crew) do not fall within the definition of `conductor' for purposes of this rule.” 76 FR 69815. To ensure that interested parties are clear on this issue, FRA states in the section-by-section analysis below that a person who moves a locomotive or a group of locomotives within the confines of a locomotive repair or servicing area as provided for in 49 CFR 218.5 and 218.29(a)(1) or moves a locomotive or group of locomotives for distances of less than 100 feet and this incidental movement of a locomotive or locomotives is for inspection or maintenance purposes is not subject to the requirements of part 242.

FRA is modifying certain provisions of 49 CFR part 242 in response to the petitions for reconsideration and issues raised following the publication of the final rule. This section of the preamble explains the changes made to the final rule. FRA respectfully refers interested parties to the agency's Section-by-Section Analysis of the final rule and the Notice of Proposed Rulemaking for a full discussion of those aspects of the rulemaking that remain unchanged. See 76 FR 69802 (Nov. 9, 2011) and 75 FR 69166 (Nov. 10, 2010).

While FRA is not modifying the definition of “conductor” in the final rule, FRA is clarifying its preamble discussion in the final rule's Section-by-Section Analysis regarding the applicability of part 242 to railroad employees who perform what have traditionally been known as hostler assignments. FRA did not intend for a person performing those types of assignments to be covered by the requirements of part 242. Accordingly, interested parties should note that a person who moves a locomotive or a group of locomotives within the confines of a locomotive repair or servicing area as provided for in 49 CFR 218.5 and 218.29(a)(1) or moves a locomotive or group of locomotives for distances of less than 100 feet and this incidental movement of a locomotive or locomotives is for inspection or maintenance purposes is not subject to the requirements of part 242.

FRA is amending paragraphs (a)(1) and (a)(2) of this section to delay the date by which the railroads will have to submit their certification programs to FRA. The final rule required a Class I railroad (including the National Railroad Passenger Corporation), Class II railroad, or railroad providing commuter service to submit a program to FRA no later than March 30, 2012 while a Class III railroad was required to submit a program by January 31, 2013. As indicated in the preamble that date is being pushed back 6 months. Accordingly, Class I, II, Amtrak, and commuter railroads must now submit their programs by September 30, 2012 while Class III railroads must submit a program by January 31, 2013.

Interested parties should note that, except for testing under parts 217 and 218 required by section 242.123, railroads may not test and evaluate a designated conductor or conductor candidate under subpart B of this rule until they have a certification program approved by the FRA pursuant to section 242.103.

This section contains the timetable for implementation of the rule. FRA is amending paragraphs (a), (b), (d), and (e) of this section to delay the date by which the railroads must designate conductors and issue certificates to those designated conductors and the date by which railroads must test and evaluate non-designated conductor candidates pursuant to subpart B of the rule. As indicated in the preamble, those dates are being pushed back 6 months. Accordingly, by September 1, 2012, all railroads must designate and issue certificates to all persons authorized by the railroads to perform the duties of a conductor as of January 1, 2012. After September 1, 2012, Class I, II, Amtrak, and commuter railroads must designate and issue certificates to all persons authorized to perform as conductors between January 1, 2012, and December 1, 2012. For the Class III railroads, after September 1, 2012, Class I, II, they must designate and issue certificates to all persons authorized to perform as conductors between January 1, 2012, and April 1, 2013.

With respect to the dates by which railroads may not initially certify or recertify a person as a conductor unless that person has been tested and evaluated in accordance with subpart B of the rule, the date for the Class I, II, Amtrak, and commuter railroads is now “after December 1, 2012” while the date for the Class III railroads is now “after April 1, 2013.”

Interested parties should note that, except for testing under parts 217 and 218 required by section 242.123, railroads may not test and evaluate a designated conductor or conductor candidate under subpart B of this rule until they have a certification program approved by the FRA pursuant to section 242.103.

Interested parties should also note that another section of this rule ( i.e., 242.101) contains implementation dates which are derived from the dates provided this section. Thus, while the regulatory text for section 242.101 is not being amended, the changes to the dates in section 242.105 will impact the implementation requirements in section 242.101.

FRA is amending paragraph (a) of this section to delay the date by which the railroads are required to maintain a list of its certified conductors. As indicated in the preamble, the date is being pushed back by 6 months. Accordingly, railroads are now required to maintain that list after September 1, 2012.

This section of the final rule required Class I (including the National Railroad Passenger Corporation and a railroad providing commuter service) and Class II railroads to conduct an annual review and analysis of their programs for responding to detected instances of poor safety conduct by certified conductors beginning in calendar year 2013. To conform with the rest of the implementation dates in part 242 that have been pushed back by 6 months, FRA is revising paragraph (a) of this section to read “beginning in calendar year 2014.”

FRA is revising paragraph (c)(2) and adding paragraph (c)(3) to this section. Those paragraphs describe who may serve as an assistant to a conductor whose qualification on the physical characteristics of a main track territory has expired. For a conductor who was previously qualified on main track physical characteristics of the territory over which he or she is to serve as a conductor, but whose qualification has been expired for one year or less and who regularly traversed the territory prior to the expiration of the qualification, paragraph (c)(2) provides that the assistant may be any person, including an assigned crewmember, who meets the territorial qualification requirements for main track physical characteristics. For a conductor whose qualification has been expired for one year or less but who has not regularly traversed the territory prior to the expiration of the qualification, or a conductor whose territorial qualification on main track has been expired for more than a year, paragraph (c)(3) provides that the assistant may be any person, including an assigned crewmember other than the locomotive engineer so long as serving as the assistant would not conflict with that crewmember's other safety sensitive duties, who meets the territorial qualification requirements for main track physical characteristics.

Section 2 of Appendix B is being amended to add a requirement that railroads must state in their programs the number of times a person must pass over a territory per year to be considered to have “regularly traversed” a territory for purposes of § 242.301(c). This requirement is similar to what railroads already do in their part 240 programs and operating rules with respect to locomotive engineers who have not worked any trips over a territory for a period of time.

FRA recognizes the uniqueness of railroad territories and the differences in their complexity and, therefore, FRA is providing the railroads with the discretion to determine how many times a conductor must pass over a territory to be considered to have “regularly traversed” a territory. Railroads have a higher level of familiarity with their territories than FRA, and thus, are in the best position to evaluate them to determine how many times a conductor must pass over a territory to safely use an assigned crewmember as an assistant. Indeed, many factors will affect the complexity of a territory. For example, signaling, grade and speed, the amount of territory covered, the number of lines that may be traversed, whether cars will be set off on branch lines and the differences between the branch lines, and joint operations over shared trackage are all factors that will need to considered in determining the number of passes that a conductor must have made over a territory before an assigned crewmember may be safely utilized as an assistant to the conductor. Given the number of factors involved, FRA expects that different frequencies of travel will be required for different lines.

Although the railroads best understand the difficulties that their territory presents for a conductor, FRA will closely review each railroad's program to ensure that the determinations regarding number of passes are reasonable in light of FRA's understanding of the railroad's operations. To that end, FRA recommends that each program contain a brief description of the railroad's operations, including mileage, speed, signal systems, type of service provided, and any other factor the railroad considers significant to their operation.

This action has been evaluated in accordance with existing policies and procedures and determined to be non-significant under both Executive Order 12866 and DOT policies and procedures. See 44 FR 11034; February 26, 1979. The original final rule was determined to be non-significant. Furthermore, the amendments contained in this action are not considered significant because they generally clarify requirements currently contained in the final rule or allow for greater flexibility in complying with the rule.

These amendments and clarifications provide more time and flexibility in the implementation of this final rule. In addition, the amendments to the conductor assistant requirements in § 242.301 should decrease the burdens related to providing assistants. Thus, these amendments will have a minimal net effect on FRA's original analysis of the costs and benefits associated with the final rule.

To ensure potential impacts of rules on small entities are properly considered, FRA developed this action and the original final rule in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA certifies that this action would not have a significant economic impact on a substantial number of small entities.

The amendments contained in this action that modify the implementation dates will provide small entities more time to implement conductor certification programs. The amendments to the conductor assistant requirements should have no significant economic impact on small entities since most small railroads usually operate with small train crews or remote control operations with a single-person crew who will be dual certified and thus likely to be qualified as both an engineer and a conductor on the physical characteristics of the territory over which they will operate. In addition, most smaller railroads have small territories and most of these territories, and their physical characteristics, likely will not change. Accordingly, because the amendments contained in this action generally clarify requirements currently contained in the final rule or allow for greater flexibility in complying with the rule, FRA has concluded that there are no substantial economic impacts on small entities resulting from this action.

The information collection requirements in this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. None of the information collection requirements and corresponding burden time estimates below have changed in response to the petitions for reconsideration.

All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan at (202) 493-6292 or Ms. Kimberly Toone at (202) 493-6132 or via email at the following addresses: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov .

FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. The assigned OMB approval number for the collection of information associated with this final rule is OMB No. 2130-0596.

Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. The action will not have a substantial effect on the States or their political subdivisions; it will not impose any compliance costs; and it will not affect the relationships between the Federal government and the States or their political subdivisions, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

However, this action could have preemptive effect by operation of law under certain provisions of the Federal railroad safety statutes, specifically the former Federal Railroad Safety Act of 1970, repealed and recodified at 49 U.S.C. 20106. Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “essentially local safety or security hazard” exception to section 20106.

In sum, FRA has analyzed this action in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this action has no federalism implications, other than the possible preemption of State laws under Federal railroad safety statutes, specifically 49 U.S.C. 20106. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this action is not required.

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards.

This action is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.

FRA has evaluated this action in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this action is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 26, 1999).

In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this action that might trigger the need for a more detailed environmental review. As a result, FRA finds that this action is not a major Federal action significantly affecting the quality of the human environment.

Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $140,800,000 or more in any one year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. The action will not result in the expenditure, in the aggregate, of $140,800,000 or more in any one year, and thus preparation of such a statement is not required.

Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the Federal Register ) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this action in accordance with Executive Order 13211. FRA has determined that this action is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this action is not a “significant energy action” within the meaning of Executive Order 13211.

Anyone is able to search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc. ). You may review DOT's complete Privacy Act Statement published in the Federal Register on April 11, 2000 (Volume 65, Number 70, Pages 19477-78), or you may visit http://www.regulations.gov/#!privacyNotice .

For the reasons discussed in the preamble, FRA amends part 242 of title 49 of the Code of Federal Regulations as follows:

NMFS manages the groundfish and crab fisheries of the Bering Sea and Aleutian Islands management area (BSAI) under the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (groundfish FMP) and the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (crab FMP). The North Pacific Fishery Management Council prepared the FMPs pursuant to the Magnuson-Stevens Act (16 U.S.C. 1801, et seq. ). The International Pacific Halibut Commission and NMFS manage fishing for Pacific halibut through regulations established under the authority of the Northern Pacific Halibut Act of 1982. Regulations governing the groundfish, crab, and halibut fisheries in the BSAI and implementing the FMPs appear at 50 CFR parts 300, 600, 679, and 680.

The CDQ Program is an economic development program associated with federally managed fisheries in the BSAI. The purposes of the program are to provide western Alaska communities the opportunity to participate and invest in BSAI fisheries, to support economic development in western Alaska, to alleviate poverty and provide economic and social benefits for residents of western Alaska, and to achieve sustainable and diversified local economies in western Alaska. The CDQ Program was developed to redistribute some of the BSAI fisheries' economic benefits to adjacent communities by allocating a portion of commercially important BSAI fisheries species to such communities. Regulations establishing the CDQ Program were first implemented in 1992. The CDQ Program was incorporated into the Magnuson-Stevens Act in 1996 through the Sustainable Fisheries Act (Pub. L. 104-297).

NMFS allocates a portion of the annual catch limits—for a variety of commercially valuable marine species—in the BSAI to the CDQ Program. These apportionments are then allocated among six different non-profit managing organizations representing different affiliations of communities (CDQ groups). CDQ groups use the revenue derived from the harvest of their fisheries allocations to fund economic development activities and provide employment opportunities.

This final rule amends regulations associated with the management of the CDQ fisheries conducted in the BSAI, as well as regulations associated with administrative aspects of the CDQ Program. The regulatory amendments are necessary to align existing regulations with changes made to the Magnuson-Stevens Act in 2006. This rule revises CDQ program regulations associated with fisheries observer coverage requirements, bycatch retention, vessel licensing, recordkeeping, and catch reporting to ensure that they are no more restrictive than the regulations in effect for comparable non-CDQ individual fishing quota (IFQ) fisheries and fisheries managed with cooperatives. The final rule revises regulations that may be considered more restrictive because they subject CDQ fishery participants to additional costs, to additional catch reporting requirements, or to additional controls beyond the measures in place for comparable non-CDQ fisheries.

The proposed rule for this action was published on July 13, 2010 (75 FR 39892), and the public comment period ended on August 12, 2010. Additional information and a description of the action are provided in detail in the preamble to the proposed rule and are not repeated here. Most of the regulatory amendments described in the proposed rule are implemented in this final rule. These include:

• Revising the CDQ Program purpose statement in § 679.1,

• Removing, revising, and adding definitions in § 679.2,

• Removing all regulations in § 679.30 (except paragraph (e)(1) related to quota transfers, which would be relocated to § 679.31) because they are not consistent with requirements in the Magnuson-Stevens Act associated with CDQ allocations, the allocation adjustment process, and the submission and maintenance of community development plans,

• Revising the CDQ catch monitoring and accounting regulations in § 679.32 to align with requirements in effect for comparable non-CDQ fisheries that are managed with IFQs or cooperatives.

• Revising CDQ observer coverage requirements in § 679.50, and

• Revising §§ 679.2, 679.4, 679.5, 679.7, 679.24, and 679.43 to remove obsolete regulations, correct errors in CDQ-related regulations that were made in prior rulemakings, and clarify CDQ-related terminology.

NMFS received comments on some of the regulatory amendments described in the proposed rule. After considering these comments, NMFS determined that several changes to the regulatory amendments described in the proposed rule are warranted and they have been made in this final rule. These changes are described below in “Comments and Responses” and “Changes from the Proposed Rule.”

Comment 1: NMFS stated in the proposed rule that because the fixed gear Pacific cod fishery was not rationalized with IFQ or cooperative allocations, vessels fishing for CDQ Pacific cod with fixed gear would be required to comply with the CDQ observer coverage requirements at 50 CFR 679.50(c)(4). However, after publication of the proposed rule, fishing companies participating in the Pacific cod hook-and-line catcher/processor sector notified NMFS that they had formed a voluntary fishing cooperative. This cooperative is now active, and fishes for both CDQ and non-CDQ Pacific cod. The vessels in this cooperative are subject to the fisheries observer requirements at 50 CFR 679.50 when fishing for non-CDQ Pacific cod with fixed gear. Section 679.50 stipulates that observer coverage requirements for this vessel category include carrying a single observer for 30 to 100 percent of fishing days per calendar quarter depending on a vessel's length, gear type, and other parameters. These requirements are less restrictive than those that apply to vessels participating in the fixed-gear Pacific cod CDQ fishery, which require fixed-gear catcher/processors, regardless of length, to carry two observers while Pacific cod CDQ fishing. Accordingly, the Magnuson-Stevens Act provision at section 305(i)(1)(B)(iv) requiring that CDQ fisheries be managed no more restrictively than fisheries with “fishing cooperatives” applies to the Pacific cod CDQ fishery.

Response: NMFS acknowledges that a voluntary fishing cooperative has been formed by the fishing companies participating in the hook-and-line catcher/processor Pacific cod fishery. NMFS received confirmation of the formation of this cooperative in a letter from the Freezer Longline Conservation Cooperative submitted on May 19, 2011. Based on additional explanation provided in section 116(b)(2) of the Magnuson-Stevens Reauthorization Act of 2006 (Pub. L. 109-479, 120 Stat. 3606 (2007)), the CDQ regulation of harvest requirements at section 305(i)(1)(B) of the Magnuson-Stevens Act also apply when a voluntary fishing cooperative has formed in a non-CDQ sector (Pub. L. 109-479, § 116(b)(2), 120 Stat. 3575, 3606 (2007) (codified at 16 U.S.C. 1855 note)). Section 116(b)(2) states that, for purposes of section 305(i)(1) of the Magnuson-Stevens Act, a “fishing cooperative” means “* * * a fishing cooperative whether or not authorized by a fishery management council or Federal agency, if a majority of the participants in the sector are participants in the fishing cooperative.”

NMFS has determined that the CDQ observer coverage requirements for vessels participating in the CDQ fixed gear Pacific cod fishery are more restrictive than the observer coverage requirements that apply to fixed gear catcher/processors participating in the non-CDQ Pacific cod fishery. Therefore, NMFS agrees with the comment and revises the relevant CDQ fisheries management regulations at § 679.32 with this final rule to ensure that the regulation of harvest provisions of the Magnuson Stevens Act apply to this sector and to vessels that are groundfish CDQ fishing while concurrently participating in a voluntary fishing cooperative. A complete description of these changes is in the section entitled “Changes from the Proposed Rule.”

Comment 2: The commenter notes that the proposed spelling of the names of two CDQ-eligible communities in the proposed rule differs from the spelling used in section 305(i)(1)(D) of the Magnuson-Stevens Act. NMFS should spell out the names of Saint George and Saint Paul, rather than abbreviating “Saint” to “St.”

Response: NMFS agrees, and revises Table 7 to 50 CFR part 679 to incorporate the full spelling of the names of these two communities.

Comment 3: NMFS should reconsider how it interprets the Magnuson-Stevens Act paragraph that addresses the regulation of CDQ harvest. Specifically, NMFS should interpret the phrase “nontarget species” in section 305(i)(1)(B)(iv) to include prohibited species quota (PSQ) allocated to the CDQ program, consistent with the plain language of the statute. Otherwise, PSQ restrictions could be applied to the CDQ fisheries in a more restrictive manner than prohibited species catch (PSC) restrictions applicable to non-CDQ fisheries.

Response: In the proposed rule prepared for this action (see ADDRESSES ), NMFS explained that Magnuson-Stevens Act requirements at section 305(i)(1)(B)(iv) do not apply to regulations governing the catch of PSQ in the CDQ fisheries. NMFS based this interpretation on existing fisheries management regulations in 50 CFR part 679, in particular those defining “harvesting or to harvest” as being associated with the catch and retention of fish. After considering the comment, NMFS has determined that this is still a reasonable interpretation of section 305(i)(1)(B)(iv), and that “nontarget species” refers to groundfish species other than the primary target species that a vessel catches in a specific haul or during a given fishing trip.

The plain language of section 305(i)(1)(B)(iv) applies the provision to the “harvest of allocations under the program.” Section 305(i)(1)(B)(i) establishes the CDQ program allocations, stating that “the annual percentage of the total allowable catch, guideline harvest level, or other annual catch limit allocated to the program in each directed fishery of the Bering Sea and Aleutian Islands shall be the percentage approved by the Secretary, or established by Federal law, as of March 1, 2006, for the program.” (emphasis added). PSC limits established in the Bering Sea and Aleutian Islands (BSAI) groundfish fisheries, and the corresponding PSQ allocations from those limits to the CDQ program, are not directed fisheries and regulations at 50 CFR 679.21(b)(2) require operators of vessels engaged in directed fishing for BSAI groundfish to minimize its catch of PSC. Therefore, PSQ is not an allocation to the CDQ program for purposes of section 305(i)(1)(B). NMFS is not persuaded by the commenter's argument that the plain language of section 305(i)(1)(B)(iv) requires inclusion of PSQ in the phrase “nontarget species” and has determined that the language of section 305(i)(1)(B) supports the agency's interpretation.

The CDQ Program as a whole, and CDQ groups individually, receive a specific allocation of each BSAI PSC category as PSQ. This includes allocations of Pacific halibut, Chinook salmon, non-Chinook salmon, and three crab species. CDQ groups are prohibited from exceeding their allocations of halibut and Chinook salmon PSQ. The complete catch of non-Chinook salmon and crab PSQ amounts results in area closures, rather than fishery closures. Each CDQ group has control over its PSQ allocations and may internally allocate them among its target fisheries as it considers appropriate. The CDQ fisheries and CDQ groups are not subject to non-CDQ fishery or management area closures that may occur during the year as non-CDQ sectors fully catch their halibut, crab, and salmon PSC apportionments.

This action will not change the management practices for PSQ management in the CDQ fisheries. As noted in the EA/RIR prepared for this action (See ADDRESSES ), NMFS expects that this action will have minimal effects on prohibited species. This action does not amend prohibitions against exceeding annual PSQ catch limits. However, it will amend regulations to allow the transfer of halibut PSQ either before or after such quota is caught, as will be allowed for groundfish CDQ transfers. Accordingly, NMFS does not believe that it is appropriate to revise its interpretation of the Magnuson-Stevens Act at section 305(i)(1)(B)(iv) to incorporate PSQ management. The treatment of PSQ will be addressed on a case-by-case basis during the development of additional fisheries management programs that establish individual quotas or fisheries cooperatives.

Comment 4: The commenter raises general concerns that the proposed rule would subject fishermen to additional paperwork or require additional fishing permits or licenses.

Response: As explained in the proposed rule, NMFS is revising fisheries regulations to ensure that the CDQ fisheries are harvested no more restrictively than other Federal fisheries managed with quotas or fisheries cooperatives. The changes that are implemented by this final rule do not add additional paperwork or permitting requirements, with the exception of the creation of an application that may be used to request the use of alternative CDQ harvesting regulations for vessels that are operating in a voluntary fishery cooperative. Contrary to the commenter's assertions, this action actually reduces catch monitoring and reporting requirements for participants in certain groundfish CDQ fisheries.

Comment 5: The comment raises general concerns about the development and implementation of the Crab Rationalization Program, which was implemented by NMFS in 2005.

Response: This comment is not specifically related to the proposed rule.

This final rule includes changes from the proposed rule. These changes fall into four categories: (1) Revisions needed to apply the Magnuson-Stevens Act regulation of harvest provision when a voluntary cooperative exists in a non-CDQ sector (see response to Comment 1); (2) revisions needed to accommodate changes made to 50 CFR part 679 by other rules that have been published since the proposed rule was published; (3) one revision needed to remove an obsolete definition; and (4) a correction to add an inadvertently deleted paragraph back into catch monitoring requirements for catcher/processors at § 679.32(c)(3).

First, a new paragraph (e) is added to § 679.32 to provide a process for relief from more restrictive CDQ regulations if a voluntary cooperative forms in a non-CDQ sector. Section 679.32(e) allows a CDQ group, a representative of an association representing the CDQ groups, or a representative of a voluntary fishing cooperative to request approval from NMFS to use non-CDQ harvest regulations while groundfish CDQ fishing. A person requesting approval to use non-CDQ harvest regulations must submit to NMFS an application that will provide NMFS with information about the submitting entity, the applicable cooperative and the fisheries in which that cooperative participates, the vessels participating in that cooperative, and a copy of the contract or affidavit documenting the formal existence of the cooperative. NMFS will review this information and make determinations about whether a majority of the participants in the sector in which the voluntary cooperative has formed are participants in the cooperative and whether the CDQ regulations are more restrictive than the non-CDQ regulations applicable to that sector. If NMFS approves an application, vessel operators operating in the cooperative would have to comply with the applicable regulations in place for a particular non-CDQ groundfish fishery based on their vessel's operational category and the directed groundfish fisheries in which they participated. Specifically, vessel operators would not have to comply with the applicable operational requirements in § 679.32(c)(3)(i) associated with (1) observer coverage levels and experience requirements, (2) observer sampling stations, and (3) the information used to accrue catch against the CDQ allocations. Operators also would not have to comply with CDQ observer coverage requirements in § 679.50(c)(4), but would have to comply with the more general observer requirements detailed in other paragraphs of § 679.50 that apply when these vessels are fishing in the non-CDQ fisheries.

As noted in Comment 1 above, a voluntary fishing cooperative has been formed by the fishing companies participating in the hook-and-line catcher/processor Pacific cod fishery. If NMFS received an application to use non-CDQ harvest regulations while vessels in this cooperative were fishing for Pacific cod CDQ, NMFS would review the application to ensure that (1) it was complete and accurate, (2) that the vessels listed on the application form comprise the majority of the vessels in the hook-and-line catcher/processor Pacific cod sector, and (3) the CDQ harvest regulations are more restrictive than the non-CDQ harvest regulations. NMFS defines the hook-and-line catcher/processor sector in the same way as it is defined in the Consolidated Appropriations Act, 2005 (Pub. L. 108-447, 118 Stat. 2886). That Act defines the “longline catcher/processor subsector” to mean “the holder of an LLP license * * * that is endorsed for Bering Sea or Aleutian Islands catcher processor activity, C/P, P. cod, and hook-and-line gear.” Thus, NMFS' review would include verifying that the vessels listed on the application form comprise greater than 50 percent of the vessels and associated LLP groundfish licenses eligible to be in this particular subsector.

In conjunction with allowing vessels in a voluntary cooperative to operate under non-CDQ groundfish fisheries regulations while fishing for groundfish CDQ, NMFS would also have to modify its CDQ catch accounting practices. This would entail using the production data that is already required to be submitted under § 679.5, rather than observer data, for some proportion of the catch made by vessels in a voluntary fishery cooperative. This is because the CDQ regulations in § 679.50(c)(4) require a higher level of observer coverage than is usually required for vessels fishing for non-CDQ groundfish. This level of observer coverage would be decreased for the vessels that are directed fishing for CDQ while operating in a voluntary cooperative. As a result, NMFS will have to use a combination of data sources to determine a vessel's total groundfish CDQ and PSQ catch. This will include the use of observer data, if available, production data submitted by the vessel operator, and NMFS-calculated bycatch rates for PSQ species.

Second, the following revisions from the proposed rule are needed to reflect revisions made to 50 CFR part 679 by other rules that have been published since the proposed rule was published:

1. The replacement of the term “NMFS-certified observer” with the term “observer” in numerous sections of 50 CFR part 679, as described in the proposed rule for this action, will still occur in this final rule. However, some of these changes have already occurred in some sections through other rulemaking, including §§ 679.5, 679.7, 679.21 and 679.50. Therefore, some of the proposed changes to terminology are no longer needed and these have been removed from the remove/add table.

2. The deletions and revisions to prohibitions in § 679.7(d) that are detailed in the proposed rule are still applicable; however, the proposed paragraph numbering is not. Following the publication of the proposed rule associated with this action, a different regulatory action re-organized and revised § 679.7(d). That action, Amendment 91 to the groundfish FMP, implemented Chinook salmon bycatch management measures in the Bering Sea pollock fisheries (75 FR 53026, August 30, 2010). Those measures also are applicable to the pollock CDQ fisheries, and include revisions to prohibitions associated with salmon PSQ. The final rule implementing Amendment 91 to the groundfish FMP categorized related CDQ prohibitions in § 679.7(d) into general, catch accounting, and prohibited species categories. This also resulted in a new paragraph numbering hierarchy. The paragraph redesignation associated with that change encompasses many of the revisions to § 679.7(d) implemented by this action.

3. The proposed change to § 679.21(e)(3)(i)(A)( 3 )( i ) is no longer necessary. The proposed revision, which would have corrected an omission made in a prior rulemaking, was made by the final rule implementing Amendment 91 to the groundfish FMP.

4. Due to the redesignation of the paragraphs under § 679.7(d), the proposed revision to a cross reference in § 679.22(h) is changed. The original revision was described in the proposed rule; however, the cross-reference changed due to the implementation of Amendment 91 to the groundfish FMP and its associated changes to § 679.7(d).

5. Some cross-references for § 679.32 that were included in the proposed rule have become obsolete due to the implementation of more recent regulatory actions. Such cross-references are revised to reflect current regulatory citations.

Third, NMFS is deleting the definition of “resident fisherman” from § 679.2. This term was originally developed for the CDQ program and is only used in the definition of “qualified applicant” and is not used elsewhere in 50 CFR part 679. NMFS proposed to delete the term “qualified applicant” in the proposed rule and the proposed deletion of the term “qualified applicant” renders the term “resident fisherman” obsolete. Therefore, NMFS is deleting the terms “qualified applicant” and “resident fisherman” in this final rule.

Fourth, NMFS inadvertently deleted an existing regulatory requirement for catcher/processors using nontrawl gear to provide an observer sampling station while fishing for groundfish CDQ in the proposed rule associated with this action (75 FR 39892, July 13, 2010). This final rule does not include the proposed deletion of this requirement to § 679.32(c)(3)(i)(F). NMFS did not intend to remove this existing regulation as the monitoring requirements for catcher/processors using nontrawl gear must be aligned with those in place for catcher/processors using trawl gear while fishing for groundfish CDQ and motherships accepting deliveries of groundfish CDQ. Vessels in each of these categories are required to provide such sampling stations to aid in fisheries observers' catch weighing, sampling, and data collection duties.

The Administrator, Alaska Region, NMFS, has determined that this rule is necessary for the conservation and management of the Alaska groundfish fisheries managed under the groundfish FMP and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

This final rule has been determined to be not significant for the 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 issues raised by the public comments in response to the IRFA, NMFS responses to comments, and a summary of the analyses completed to support the action. Each item in section 604(a)(1)-(5) of the RFA has been addressed in the classification section of the final rule. A copy of this analysis is available from NMFS (see ADDRESSES ).

NMFS published the proposed rule for this action on July 13, 2010 (75 FR 39892), with comments invited through August 12, 2010. An IRFA was prepared, and summarized in the “Classification” section of the proposed rule. The description of this action, the need for and objectives of the action, and the legal reasons for selecting the alternative implemented by this action are described elsewhere in this preamble and are not repeated here.

NMFS received two responses, containing five unique comments, about the proposed rule. No public comments were specifically received about the IRFA. However, one of the public comments requested that NMFS consider additional revisions to CDQ catch monitoring regulations with respect to the hook-and-line catcher/processor sector. Such revisions would decrease the applicable fisheries observer requirements for this vessel category while such vessels were fishing for Pacific cod CDQ. Comment 1 discusses this issue in detail in the section titled “Response to Comments.” NMFS is implementing changes to CDQ catch monitoring regulations for vessels that fish for groundfish CDQ while participating in a cooperative as part of this action.

The entities directly regulated by this action are the six CDQ groups that participate in the halibut, sablefish, groundfish, and pollock CDQ fisheries in the BSAI. CDQ groups are considered to be small entities under the RFA's categorization of small, non-profit organizations. This action is expected to reduce the costs associated with various aspects of participating in these CDQ fisheries. These include costs associated with different CDQ fisheries' regulatory requirements governing (1) fisheries observer coverage levels, (2) catch retention and accounting, (3) vessel eligibility designation, and (4) vessel licensing.

All six CDQ groups annually are allocated groundfish CDQ, halibut CDQ, and crab CDQ. These groups participate, either directly or indirectly, in the commercial harvest of these allocations. CDQ groups receive royalties from the successful harvest of CDQ by commercial fishing companies, as well as access to employment and training opportunities for their communities' residents. Royalties and income from CDQ harvesting activities are used to fund economic development projects in CDQ communities. Based on the most recently available information, the CDQ groups received approximately $60 million in royalties from the harvest of their CDQ allocations in 2009. Participants in the CDQ fisheries affected by this action will no longer be subject to regulations that are more costly, complex, or burdensome than those that apply to comparable IFQ fisheries or fisheries managed with cooperatives. Thus, this action is not expected to have an adverse economic impact on the small entities affected by this action.

NMFS evaluated three alternatives associated with this action. Alternative 1, the status quo, would maintain different fisheries management regulations for the halibut, fixed gear sablefish, and pollock CDQ fisheries. Each of these fisheries has a comparable IFQ or cooperative fishery. However, due to the different policies and objectives associated with the original development of the regulations governing the CDQ fisheries, CDQ harvest regulations sometimes differed from those in place for the non-CDQ fisheries associated with this action. Maintaining existing regulations associated with the CDQ fisheries that are more restrictive than those in place for comparable IFQ and cooperative fisheries would not comply with the Magnuson-Stevens Act.

Alternative 2, the preferred alternative, will revise CDQ fisheries management regulations in 50 CFR part 679 to align them with regulations that govern fisheries managed with IFQs and fisheries managed with cooperatives. The regulatory revisions implemented by this rule include: (1) Separating fixed gear sablefish CDQ and pollock CDQ from regulations associated with the other groundfish CDQ fisheries; (2) exempting participants in the sablefish CDQ fishery from needing a license limitation program groundfish license by excluding fixed gear sablefish CDQ from the definition of “license limitation species”; (3) removing a requirement that CDQ groups annually submit a request to NMFS to designate specific vessels as eligible to harvest groundfish CDQ on their behalf; (4) revising CDQ catch monitoring requirements; and (5) revising regulations to align observer coverage requirements for the sablefish, halibut, groundfish, and pollock CDQ fisheries with comparable non-CDQ fisheries. On the basis of the best available information, this preferred alternative imposes the minimum adverse economic impact on directly regulated small entities, while achieving the objectives of the regulatory action, among all the alternatives available to the agency. The preferred alternative incorporates regulatory revisions that reduce the potential economic and operational burden on small entities.

Alternative 3 would amend regulations to fully integrate the sablefish CDQ fisheries into the sablefish IFQ fisheries management system. It also would make the same general changes proposed for Alternative 2 (described in the preceding paragraph). Sablefish CDQ currently is managed in conjunction with all other groundfish CDQ fisheries. In contrast, halibut CDQ is managed in conjunction with the halibut IFQ fisheries, and is thus subject to IFQ-related regulations. Alternative 3 would (1) require CDQ groups to obtain sablefish CDQ permits prior to conducting directed fishing for sablefish, (2) incorporate sablefish CDQ into the IFQ recordkeeping and reporting requirements and make IFQ prohibitions applicable to the sablefish CDQ fishery, and (3) incorporate the sablefish CDQ fishery into IFQ regulations associated with quota transfers and catch accounting.

Both Alternatives 2 and 3 would meet the requirement of the Magnuson-Stevens Act that CDQ fisheries be managed no more restrictively than fisheries managed with IFQs or harvesting cooperatives by matching regulations as closely as possible for relevant CDQ and non-CDQ fisheries. In the case of Alternative 3, the sablefish CDQ fishery would be fully integrated into both the regulations and the administrative structure in place for the sablefish IFQ fishery.

Alternative 2 was selected as the preferred alternative primarily based on the potential changes that each alternative would bring to the fixed gear sablefish CDQ fishery. NMFS believes that Alternative 2 would result in the least disruptive change to the CDQ groups and CDQ fisheries, while meeting the regulation of harvest requirements in the Magnuson-Stevens Act. Alternative 2 would amend regulations for the CDQ fisheries affected by this action to match regulations in place for most comparable non-CDQ fisheries, but would not make as many changes to the program as Alternative 3. Alternative 2 would not integrate the sablefish CDQ fishery into the sablefish IFQ program. CDQ groups would not be subject to sablefish CDQ permitting requirements and additional IFQ-related reporting requirements, nor would NMFS have to implement such requirements. Furthermore, keeping fixed gear sablefish CDQ under the groundfish CDQ catch accounting and management system would make it easier for NMFS to monitor the catch and transfer of the multiple categories of sablefish CDQ ( i.e., trawl and non-trawl gear allocations) allocated to the CDQ Program and CDQ groups. Placing the fixed-gear sablefish CDQ in the sablefish IFQ catch accounting system would add complexity to the sablefish CDQ transfer process.

NMFS is not aware of any additional alternatives to those considered that would accomplish the objectives of the Magnuson-Stevens Act and other applicable statutes while minimizing the economic impact of this rule on small entities.

NMFS also is not aware of any other federal rules that would duplicate, overlap, or conflict with this action.

This final rule removes a number of collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by the Office of Management and Budget (OMB) under control number 0648-0269. The collection-of-information requirements that will be removed from the collection with publication of this final rule and its public reporting burden per response is estimated at: One hour for CDQ vessel eligibility request; 520 hours for a community development plan (CDP); 20 hours for an annual budget report; eight hours for an annual budget reconciliation report; 40 hours for a substantial amendment to a CDP; and eight hours for a technical amendment to a CDP.

This final rule contains a new collection-of-information requirement subject to the PRA and which has been approved by OMB under control number 0648-0269. NMFS is revising regulations to allow vessels that are fishing for groundfish CDQ, while operating in a voluntary fishery cooperative, to submit to NMFS an application for the use of non-CDQ regulations when the CDQ regulations are more restrictive than the regulations otherwise required for participants in non-CDQ groundfish CDQ fisheries. This provision will be implemented through an application to NMFS for approval to use non-CDQ harvest regulations. NMFS estimates that the public reporting burden is five hours per response. Response times 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 this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to NMFS (see ADDRESSES ), and by email 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, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

Section 212 of the Small Business Regulatory Enforcement Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules.

The preamble to this final rule serves as the small entity compliance guide. The action does not require any additional compliance from small entities that is not described in the preamble. Copies of the final rule are available from NMFS (see ADDRESSES ) and at the following Web site: http://www.alaskafisheries.noaa.gov.

For the reasons stated in the preamble, NMFS amends 50 CFR parts 679 and 680 as follows: