I. Background

Section 305 of the Consolidated Appropriations Act, 2012 amended Section 1702(b) of Title XVII by striking the existing subsection (b) and inserting instead a provision that makes clear no guarantee shall be made unless an appropriation for the cost of the guarantee has been made; the Secretary has received from the borrower a payment in full for the cost of the guarantee and deposited the payment into the Treasury; or a combination of one or more appropriations and one or more payments from the borrower has been made that is sufficient to cover the cost of the guarantee.

Today's action is a technical amendment to revise the regulations for the loan guarantee program authorized by Section 1703 of Title XVII to incorporate, without substantive change, the amendment to Section 1702(b) of Title XVII referred to above.

Pursuant to authority at 5 U.S.C. 553(b)(B), the DOE finds good cause to waive the requirement for prior notice and an opportunity for public comment on this rulemaking because such procedures would be unnecessary. As DOE is merely inserting into the Code of Federal Regulations statutory provisions already applicable to these loan guarantees and removing language inconsistent with those statutory provisions prior notice and an opportunity for public comment would serve no useful purpose. For the same reason, DOE finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date and make this rule effective immediately.

Today's final rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, “Regulatory Planning and Review.” 58 FR 51735 (October 4, 1993). Accordingly, today's action was subject to review by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. The Department has made its procedures and policies available on the Office of General Counsel's Web site: http://www.gc.doe.gov. DOE today is revising the Code of Federal Regulations to incorporate, without substantive change, an amendment to Section 1702(b) of Title XVII. Because this is a technical amendment for which a general notice of proposed rulemaking is not required, the Regulatory Flexibility Act does not apply to this rulemaking.

This rulemaking imposes no new information or record keeping requirements. Accordingly, Office of Management and Budget clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq. )

DOE has determined that this rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A.6 of Appendix A to Subpart D, 10 CFR part 1021, which applies to rulemakings that are strictly procedural. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism.” 64 FR 43255 (Aug. 10, 1999) imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of today's proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA (62 FR 12820) (also available at http://www.gc.doe.gov ). This final rule contains neither an intergovernmental mandate nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements under the UMRA do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

The Department has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this rule would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's rulemaking under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This final rule would not have a significant adverse effect on the supply, distribution, or use of energy and, therefore, is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule prior to its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Secretary of Energy has approved publication of today's final rule.

For the reasons set forth in the preamble, DOE hereby amends Part 609 of chapter II of title 10 of the Code of Federal Regulations as set forth below:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on February 28, 2012 (77 FR 11791). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 11791, February 28, 2012) or on the determination of the cost to the public.

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

We estimate that this AD will affect 10 products of U.S. registry. We also estimate that it will take about 360 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $306,000, or $30,600 per product.

In addition, we estimate that any necessary follow-on actions would take about 40 work-hours and require parts costing $12,454, for a cost of $15,854 per product. We have no way of determining the number of products that may need these actions.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (77 FR 11791, February 28, 2012), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 90-21-17, Amendment 39-6768 (55 FR 41510, October 12, 1990). That AD applies to the specified products. The NPRM was published in the Federal Register on June 29, 2011 (76 FR 38074). That NPRM proposed to continue to require repetitive inspections for cracks of the fuselage skin lap splice between body station (BS) 400 and BS 520 at stringers S-6L and S-6R, and repair if necessary; and added modification for certain airplanes and certain post-modification inspections for other airplanes.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (76 FR 38074, June 29, 2011) and the FAA's response to each comment.

Boeing stated that certain compliance times conflict in the proposed AD (76 FR 38074, June 29, 2011). To resolve the conflict, Boeing requested that we remove paragraph (k) from the proposed AD. (Paragraph (k) was retained from AD 90-21-17, Amendment 39-6768 (55 FR 41510, October 12, 1990).) The initial compliance time for the inspections specified in paragraphs (k), (l), and (m) of the proposed AD is 10,000 flight cycles after certain modifications have been done. Boeing noted that the repetitive interval is 5,000 flight cycles for paragraph (k) of the proposed AD—but Boeing Service Bulletin 747-53A2303, Revision 2, dated October 1, 2009, specifies 500 flight cycles for paragraphs (l) and (m) of the proposed AD. Boeing stated that the preventive modifications include the protruding head fastener modification and the external reinforcement doubler installation (which does not cut the lap).

We partially agree with the request. We agree that, as written, the compliance times specified in paragraphs (l) and (m) of the proposed AD (76 FR 38074, June 29, 2011) would have conflicted with the compliance time specified in paragraph (k) in the proposed AD, as described by the commenter. But, for airplanes nearing the 5,000-flight-cycle repetitive interval specified in paragraph (k) of the AD on the new effective date, removing paragraph (k) from the AD would allow an unwarranted extension of time to comply, and could compromise the continued safe operation of those airplanes. We have therefore retained paragraph (k) in this AD. We have further determined that, once the applicable inspections specified in paragraph (l) or (m) of the AD have been initiated, the actions in paragraph (k) are no longer necessary. To avoid the conflict described by the commenter, we have revised paragraphs (l) and (m) of this AD to state that their accomplishment terminates the requirements of paragraph (k) of this AD.

Boeing requested that we revise paragraph (n) of the proposed AD (76 FR 38074, June 29, 2011) to specify separate requirements for the two groups of affected airplanes, so that the proposed AD agrees with the actions specified in Table 2 of paragraph 1.E., “Compliance,” of Boeing Service Bulletin 747-53A2303, Revision 2, dated October 1, 2009.

One group affected by paragraph (n) of the proposed AD (76 FR 38074, June 29, 2011) is airplanes on which no previous modification or repair has been installed in the affected area. For those airplanes, Boeing requested that we require a structural modification in accordance with Part 3 of Boeing Service Bulletin 747-53A2303, Revision 2, dated October 1, 2009, within the compliance time specified in paragraph A. of AD 90-06-06, Amendment 39-6490 (55 FR 8374, March 7, 1990).

(AD 90-06-06, Amendment 39-6490 (55 FR 8374, March 7, 1990), applies to certain Boeing Model 747 series airplanes and requires structural modifications in accordance with Boeing Document D6-35999, dated March 31, 1989. That document in turn refers to Boeing Alert Service Bulletin 747-53A2303, dated June 2, 1988, as another source of guidance for doing that modification.)

Boeing requested no change for the remaining airplanes identified in paragraph (n) of the proposed AD (76 FR 38074, June 29, 2011).

We partially agree. For the referenced airplanes, this same modification is one of the requirements of AD 90-06-06, Amendment 39-6490 (55 FR 8374, March 7, 1990). The compliance time for this modification is 23,000 total accumulated flight cycles, or within 4 years after the effective date (April 17, 1990), whichever occurs later. To clarify the ADs' requirements, we have removed those airplanes from paragraph (n) of the NPRM (76 FR 38074, June 29, 2011) and added a new paragraph (o) in this AD, which explains that, for those airplanes, accomplishment of the referenced modification satisfies the corresponding requirement for AD 90-06-06, but post-modification inspections are required. We have re-identified subsequent paragraphs in this AD accordingly.

Boeing requested that the FAA review the compliance data in the proposed AD (76 FR 38074, June 29, 2011). Boeing noted that the proposed AD repeated all the compliance data as stated in Boeing Service Bulletin 747-53A2303, Revision 2, dated October 1, 2009. Boeing requested that we refer to the compliance table in this service bulletin as the source of all compliance data, except as noted.

Referring to paragraph 1.E., “Compliance,” of a service bulletin may be an efficient way to convey compliance time information in an AD, if the compliance times are complex or numerous. But specifying simpler compliance times within an AD—as in paragraphs (l), (m), and (n) in this AD—is also acceptable and enforceable. For requirements retained from a superseded AD—as in paragraphs (g) through (k) in this AD—we routinely restate the existing language from the AD that is being superseded, including the text describing the compliance times. We have not changed this AD regarding this issue.

The information in Note 1 of the proposed AD (76 FR 38074, June 29, 2011) has been moved to a new paragraph (g)(4) in this AD.

As explained in the proposed AD (76 FR 38074, June 29, 2011), paragraph (p) in the proposed AD (paragraph (q) in this final rule) was revised to add delegation of authority to Boeing Commercial Airplanes Organization Designation Authorization (ODA) to approve an alternative method of compliance for any repair required by this AD. We have also changed paragraph (k) of this AD to reflect this change.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (76 FR 38074, June 29, 2011) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 38074, June 29, 2011).

We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

There are about 165 airplanes of the affected design in the worldwide fleet; of these, 64 are U.S.-registered airplanes. The following table provides the estimated costs for U.S. operators to comply with this AD.

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

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

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on February 14, 2012 (77 FR 8181). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 8181, February 14, 2012) or on the determination of the cost to the public.

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

• Are consistent with the intent that was proposed in the NPRM (77 FR 8181, February 14, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 8181, February 14, 2012).

We estimate that this AD will affect about 4 products of U.S. registry. We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $340, or $85 per product.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (77 FR 8181, February 14, 2012), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Discussion

We received reports of cracks found in the wing lower main spar caps on Cessna Aircraft Company Models 210G, T210G, 210H, T210H, 210J, T210J, 210K, T210K, 210L, T210L, 210M, T210M, 210N, T210N, P210N, 210R, T210R, and P210R airplanes with cantilever metal wings. The reports include a wing lower main spar cap that was completely severed with the skin split. This condition, if not corrected, could result in structural failure of the wing with consequent loss of control.

We reviewed Cessna Aircraft Company Single Engine Service Letter SEL-57-01, Revision 1, dated May 9, 2012. The service letter describes procedures for visually inspecting the right and left lower main spar caps for cracks and replacing the spar cap, wing spar, or wing, as applicable.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires a one-time internal (for all airplanes) and external (for certain airplanes) visual inspection of the left and right wing lower main spar caps for cracks and either replacing cracked wing lower main spar caps, wing spars, or wings, or incorporating an FAA-approved modification. This AD also requires reporting the results of the inspections to the FAA, Wichita ACO.

We consider this AD interim action. We are requiring inspection(s) of the left and right wing lower main spar caps with a report to the FAA of the results. We will work with the type certificate holder to evaluate that information to determine repetitive inspection intervals and subsequent terminating action. Based on this evaluation, we may initiate further rulemaking action to address the unsafe condition identified in this AD.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because cracks in the wing lower main spar caps could result in structural failure of the wing during flight with consequent loss of control. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2012-0534 and Directorate Identifier 2012-CE-015-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 3,665 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Currently, there is no FAA-approved modification for a cracked wing lower main spar cap. If cracks are found during the inspections required by this AD, further flight is prohibited until an FAA-approved modification is incorporated or the cracked wing lower main spar cap is replaced with a serviceable spar cap, wing spar, or wing (as applicable) if one is available. The FAA does not have availability and cost information on serviceable spar caps, wing spars, or wings. Therefore, at this time, the FAA has no way of determining any on-condition costs associated with replacing or modifying cracked wing lower main spar caps.

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

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

History

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E airspace for the Leesville, LA, area, creating additional controlled airspace at Leesville Airport (77 FR 4702) Docket No. FAA-2011-0608. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Leesville Airport, Leesville, LA. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates are also updated to coincide with the FAA's aeronautical database.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Leesville Airport, Leesville, LA.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace for Springhill, LA, reconfiguring controlled airspace at Springhill Airport (77 FR 4707) Docket No. FAA-2011-0847. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface for the Springhill, LA area. Decommissioning of the Springhill NDB and cancellation of the NDB approach at Springhill Airport has made reconfiguration of the airspace necessary for the safety and management of IFR operations at the airport. Geographic coordinates are updated to coincide with the FAA's aeronautical database.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Springhill Airport, Springhill, LA.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace for Maryville, MO, reconfiguring controlled airspace at Northwest Missouri Regional Airport (77 FR 4703) Docket No. FAA-2011-0434. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface for the Maryville, MO area. Decommissioning of the Emville NDB and cancellation of the NDB approach at Northwest Missouri Regional Airport has made reconfiguration of the airspace necessary for the safety and management of IFR operations at the airport. Geographic coordinates are also updated to coincide with the FAA's aeronautical database.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Northwest Missouri Regional Airport, Maryville, MO.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E airspace for the Monahans, TX, area, creating additional controlled airspace at Roy Hurd Memorial Airport (77 FR 4704) Docket No. FAA-2011-1400. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Roy Hurd Memorial Airport, Monahans, TX. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates are updated to coincide with the FAA's aeronautical database.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Roy Hurd Memorial Airport, Monahans, TX.

History

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E airspace for the New Philadelphia, OH, area, creating additional controlled airspace at Harry Clever Field (77 FR 4705) Docket No. FAA-2011-0607. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Harry Clever Field, New Philadelphia, OH. This action is necessary for the safety and management of IFR operations at the airport. Also, the geographic coordinates of the airport are updated to coincide with the FAA's aeronautical database.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Harry Clever Field, New Philadelphia, OH.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E airspace for the Baraboo, WI, area, creating additional controlled airspace at Reedsburg Municipal Airport (77 FR 4701) Docket No. FAA-2011-1403. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order. Subsequent to publication, it was discovered that the Airspace Docket No. was cited incorrectly. This action corrects the error.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Reedsburg Municipal Airport, Baraboo, WI. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates are updated to coincide with the FAA's aeronautical database. This action also cites the correct Airspace Docket No. from 11-ASW-29 to 11-AGL-29.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Reedsburg Municipal Airport, Baraboo, WI.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E airspace for the Red Cloud, NE., area, creating additional controlled airspace at Red Cloud Municipal Airport (77 FR 4713) Docket No. FAA-2011-0426. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Red Cloud Municipal Airport, Red Cloud, NE. This action is necessary for the safety and management of IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Red Cloud Municipal Airport, Red Cloud, NE.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace at Branson West Municipal-Emerson Field Airport, Branson West, MO (77 FR 4709) Docket No. FAA-2011-0749. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Branson West Municipal-Emerson Field Airport, Branson West, MO. Controlled airspace is necessary to accommodate new standard instrument approach procedures at Branson West Municipal-Emerson Field Airport, and for the safety and management of IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Branson West Municipal-Emerson Field Airport, Branson West, MO.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace at Pender Municipal Airport, Pender, NE (77 FR 4712) Docket No. FAA-2011-1103. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Pender Municipal Airport, Pender, NE. This action is necessary for the safety and management of IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Pender Municipal Airport, Pender, NE.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace at Eldon Model Airpark, Eldon, MO (77 FR 4710) Docket No. FAA-2011-1104. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Eldon Model Airpark, Eldon, MO. This action is necessary for the safety and management of IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Eldon Model Airpark, Eldon, MO.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E airspace for the Freer, TX, area, creating additional controlled airspace at Seven C's Ranch Airport (77 FR 4700) Docket No. FAA-2011-0904. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Seven C's Ranch Airport, Freer, TX. This action is necessary for the safety and management of IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Seven C's Ranch Airport, Freer, TX.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On January 31, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace for the Houston, MO, area, creating controlled airspace at Houston Memorial Airport (77 FR 4711) Docket No. FAA-2011-0903. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Houston Memorial Airport, Houston, MO. This action is necessary for the safety and management of IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Houston Memorial Airport, Houston, MO.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

Background

On March 21, 2011, the Department published a proposed rule entitled “Proposed Modification to Regulation Concerning the Revocation of Antidumping and Countervailing Duty Orders” that would modify its regulations concerning the revocation of antidumping and countervailing duty orders. (76 FR 15233). The Proposed Rule detailed proposed changes to the Department's regulations that provide for revocation of antidumping and countervailing duty orders. Certain parties commented on the Proposed Rule, and the Department has addressed those comments in the section below entitled “Response to Comments on the Proposed Rule”.

After analyzing and carefully considering all of the comments that the Department received in response to the Proposed Rule, the Department is adopting the proposed changes and is amending its regulations to eliminate the provision for revocation of an antidumping or countervailing duty order with respect to individual exporters or producers based on those individual exporters or producers having received antidumping rates of zero for three consecutive years, or countervailing duty rates of zero for five consecutive years. The Proposed Rule, comments received, and this Final Rule can be accessed using the Federal eRulemaking Portal at http://www.regulations.gov under Docket Number ITA-2011-0001.

To implement this rule, the Department is removing 19 CFR 351.222(b)(2) and (3) (dumping) and 351.222(c)(3) and (4) (countervailable subsidy), and is making conforming changes as necessary to the remaining paragraphs of 19 CFR 351.222. In addition, the Department is amending 19 CFR 351.222(f)(2) to make it clear that a request for revocation that does not conform with the requirements of paragraph (e) does not require the Secretary to undertake the actions provided for in paragraphs (f)(2)(i) through (f)(2)(vi). The Department also is correcting a grammatical error in the third sentence of 19 CFR 351.222(a) (changing “have” to “has”) and deleting 19 CFR 351.222(m) (a provision related to the Uruguay Round Agreements Act that is no longer applicable). Finally, the Department is correcting a typographical error in § 351.222(e)(1)(i) that was identified in comments on the Proposed Rule (changed “the person” to “they”). The Department is retaining, with some conforming changes, the sections of 19 CFR 351.222 that regard revocations of orders in whole. The Department is not making any changes with respect to revocations as described under paragraphs (g) through (l) of 19 CFR 351.222.

The Department received numerous comments on the Proposed Rule. As indicated in the “Background” section, these comments can be accessed using the Federal eRulemaking Portal at http://www.regulations.gov under Docket Number ITA-2011-0001. The Department analyzed and carefully considered all of the comments received. Below is a summary of the comments, grouped by issue category and followed by the Department's response.

Some commenters assert that the use of the word “may” in Section 751(d)(l) of the Tariff Act of 1930, as amended (the “Act”), makes it clear that Congress fully delegated to the Department the authority to prescribe the specific conditions under which revocation of an order, whether in whole or in part, is appropriate. Some commenters also assert that, given the availability of revocation and termination in whole or in part in changed circumstances reviews and in whole in five-year sunset reviews, respondents seeking relief from antidumping or countervailing duties have more than ample opportunity to achieve that goal without the company-specific avenue contained in 19 CFR 351.222(b)(2) and (b)(3) and 351.222(c)(3) and (c)(4). Further, in addition to not being required by U.S. law, some parties assert that the company-specific revocation provisions are not required by any of the relevant WTO agreements. These parties assert that the WTO dispute settlement panel in United States—Anti-Dumping Measures on Oil Country Tubular Goods, paragraph 7.166, WT/DS282/R (adopted June 20, 2005) found that 19 CFR 351.222(b)(2) of the Department's regulations was not required by the United States' WTO obligations because there was an opportunity for foreign companies to request revocation under the changed circumstances review provisions ( i.e., 19 CFR 351.222(g)).

Some commenters suggest that further cost savings can be attained by withdrawing the regulations providing for country-wide revocations at 19 CFR 351.222(b)(l) (dumping) and 351.222(c)(1) and (2) (subsidies). They assert that, because as part of a sunset review the Department already considers whether there has been continued dumping or subsidies after issuance of an order, there is no compelling need to maintain the company-specific and country-wide revocation procedures set forth at 19 CFR 351.222(b) and (c).

One commenter asserts that when a company demonstrates that it has not dumped its products over a certain period of time, the statue no longer justifies binding that company to costly administrative reviews. Another party asserts that the statute calls for revocation “in whole or in part” based on administrative review results, and that this is evidence of the drafters' intent to allow for other means of revocation besides termination of the order itself. One party asserted that the proposed rule, if implemented, would essentially eliminate the only viable opportunity for revocation for individual exporters/producers. Several commenters note that company-specific revocations have been a practice for many years and assert that parties have relied upon that practice in the expectation of being granted a revocation in part.

One commenter asserts that the additional risk inherent in the U.S. retrospective system is partly offset by the possibility of revocation, and requests that the Department take this into account in assessing whether to eliminate company-specific revocations of antidumping and countervailing duty orders. One party proposes that the Department's current revocation provisions remain in effect for developing countries as a form of special and differential treatment per Article 15 of the Antidumping Agreement and Article 27 of the Agreement on Subsidies and Countervailing measures. Another commenter contends that pursuant to Articles 11 of the Antidumping Agreement, WTO members can only continue an antidumping duty order “to the extent necessary” to “counteract dumping” and must consider the request of “any interested party” to “examine whether the continued imposition of the duty is necessary to offset dumping.” Citing Amended Regulation Concerning the Revocation of Antidumping and Countervailing Duty Orders; Final Rule, 64 FR 51226 (September 22, 1999), the party asserts that in that Federal Register notice the Department concluded that Article 11.2 of the Antidumping Agreement requires the Department to revoke an antidumping order for any exporter who demonstrates the absence of dumping for three years, provided there is no evidence of record to the contrary. One party asserts that the Department vigorously defended company-specific revocations pursuant to Article 11 of the Antidumping Agreement in WTO litigation (citing report of WTO Panel, United States—Antidumping duty on Dynamic Random Access Memory Semiconductors from Korea, WT/DS99/R (adopted March 19, 1999) (DRAMS).

Response to Comments: Company-specific revocations are not required by U.S. law, and thus, the elimination of such revocations is consistent with U.S. law. Section 751(d)(1) of the Act states, in relevant part, that the Department “may revoke, in whole or in part * * * .” an antidumping or countervailing duty order. As several parties note, the use of the word “may” indicates that revocations under this section of the Act, whether in whole or in part, are not required. Because the authority for company-specific revocations derives from section 751(d)(1) of the Act, those types of revocations are not mandatory.

We agree that section 751(d)(1) of the Act permits revocations other than revocation of an order in whole, i.e., the provision permits the Department to revoke an order in part. The Act does not, however, define what it means to revoke an order in part. See Sahaviriya Steel Ind. Pub Co. Ltd. v. United States, No. 2010, slip op. at 9-10 (Fed. Cir. June 17, 2011). The Department has the discretion to interpret this provision, and is not required to interpret it to include company-specific revocations. The Proposed Rule does not affect other types of revocations in part. For example, orders may continue to be revoked in part if a party demonstrates a lack of interest in maintaining the order on a certain type of subject merchandise by substantially all of the domestic industry. See, e.g., Certain Pasta from Italy; Final Results of Countervailing Duty Changed Circumstances Review and Revocation, In Part, 76 FR 27634 (May 12, 2011).

Regarding the comment from several parties that company-specific revocations have been a practice for many years and that parties have relied upon that practice in the expectation of being granted a revocation in part, the age of a practice does not affect the legality of its elimination. Rather, the Department has the authority to change its practice at any time provided that it gives a reasoned explanation for its change. See Allegheny Ludlum Corp. v. United States, 346 F.3d 1368, 1373 (Fed. Cir. 2003) ( Allegheny Ludlum ). In the Proposed Rule and the below sections entitled “Comment 2—Whether the Department Provided a Reasoned Analysis for the Proposed Rule” and “Comment 4—Reasons for Discontinuing Company-Specific Revocations”, the Department further explains its rationale for eliminating company-specific revocations. Moreover, the Department has provided parties ample notice of the change and opportunity to comment, and took those comments into consideration for this Final Rule. In any event, the statute and the regulation make clear that revocation is discretionary.

Regarding the comments from several parties that the Proposed Rule would be contrary to the United States' obligations under the Antidumping Agreement, we disagree. We note that the Act “is intended to bring U.S. law fully into compliance with U.S. obligations under [the WTO Agreements].” See SAA accompanying the URAA, HR Doc 316, Vol. 1, 103d Cong (1994) at 669. And, as explained above, U.S. law does not require company-specific revocations. Moreover, there is nothing in Article 11 of the Antidumping Agreement that requires company-specific revocations. We also note that the Department is not eliminating its practice, as codified in its regulations, of revoking an order in whole based on the absence of dumping.

Regarding the argument that the Department defended company-specific revocations pursuant to Article 11 of the Antidumping Agreement in the DRAMS dispute, that dispute concerned the evidence that could be relied upon in determining whether revocation was proper. The Department's regulation at the time required it to determine that sales of subject merchandise at below normal value in the future were not likely. The Panel considered whether this “not likely” standard was consistent with the requirements of Article 11.2 of the Antidumping Agreement, and determined that it was not. This dispute was not about whether company-specific revocations were required by the Antidumping Agreement, and the Panel's findings did not involve that issue.

Finally, with regard to the suggestion that the company-specific revocation regulations remain in effect for developing countries as a form of special and differential treatment per Article 15 of the Antidumping Agreement and Article 27 of the Agreement on Subsidies and Countervailing measures, neither Article requires company-specific revocations, and we have not adopted this suggestion.

Several commenters assert that U.S. administrative law requires that the Department provide a “reasoned analysis” for this proposed change to the regulations, and that the Proposed Rule lacked a “reasoned analysis” because the Department did not explain why the Proposed Rule is being undertaken and why the facts and circumstances that underlay the existing revocation policy should be disregarded. They assert that, because the Department has not provided a reasoned analysis or the basic factual assumptions underlying the Proposed Rule, interested parties have been denied a meaningful opportunity to comment. One of these parties cites Motor Veh. Mfrs. Ass'n v. State Farm Ins., 463 U.S. 29, 42, in support of its assertion that U.S. administrative law requires that the Department provide a “reasoned analysis” for this proposed change to the regulations. It argues further that pursuant to the U.S. Supreme Court ruling in FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009), “a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” The same party cites that in a prior rulemaking exercise the Department stated that it “has consistently considered that an absence of dumping for three consecutive years was indicative that a foreign respondent was not likely to sell at less than normal value in the future.” See Proposed Regulation Concerning Revocation of Antidumping Duty Orders; Notice of Proposed Rulemaking, 64 FR 29818 (June 3, 1999). It contends that in the Proposed Rule the Department made no effort to refute this statement, and that by not explaining the proposed change the Department's proposal runs afoul of the Administrative Procedures Act. The party also asserts that because the Department has not provided a reasoned analysis or the basic factual assumptions underlying the proposed change, interested parties have been denied a meaningful opportunity to comment.

Response to Comments: The Department explained its reasons for eliminating company-specific revocations in the Proposed Rule. Specifically, the Department stated that it was proposing the elimination of company-specific revocations because: (1) The existing regulation requires the Department to expend additional resources in conducting administrative reviews where a request for company-specific revocation is being considered; (2) only a small fraction of the companies the Department reviews are ultimately found to be eligible for a company-specific revocation; (3) to the extent that eligible companies maintain antidumping duty or countervailing duty rates of zero percent, the proposal would not change the amount of duties applied to subject entries; and (4) many of the companies for which reviews have been requested may not have the opportunity to amass the three antidumping rates of zero percent or five countervailing duty rates of zero percent necessary to be eligible for a company-specific revocation because the Department frequently is not able to examine all companies under review. The Department further stated that “[r]ather than administering the company-specific revocation regulations in a manner that does not afford equitable opportunity to all companies to seek revocation, and in light of the additional factors noted, the Department proposes to eliminate the company-specific revocation regulations.”

The Department may change its practice at any time as long as it provides a reasoned explanation for the change. See Allegheny Ludlum. Here, the Department provided a reasoned explanation. The Department explained the burden on its resources that company-specific revocation reviews entail. It is reasonable for the Department to make changes in response to its resource constraints. See Pakfood Public Co. Ltd. v. United States, 753 F. Supp 2d 1334 (Ct. of International Trade 2011) (holding that administrative convenience is a valid reason for a change in practice).

The Department has not ignored the circumstances that supported the existence of the regulation in the first place, but rather has determined that it is no longer appropriate to continue the practice in light of current resources for the reasons described in the Proposed Rule.

Some commenters ask that the Department adopt and implement the proposed change to the revocation regulations immediately ( i.e., make the change applicable to all administrative reviews currently pending before the Department). Others request that the Department continue to allow for revocations in all ongoing reviews in which a revocation request has been made. One commenter suggests that the Department “grandfather in” any company that had reviews of itself initiated prior to the adoption of this rule to give them the opportunity to earn three zeros and, ultimately, revocation. Another party expresses concern that the proposal could undermine legitimate expectations of exporters, given uncertainty over entry into force of the proposed change.

Response to Comments: As indicated in the DATES section above, this Final Rule will apply to all reviews that are initiated on or after June 20, 2012. The Department believes that this is a fair and reasonable approach to the effective date issue for this particular change. Importantly, implementing the Final Rule in this manner will provide parties that have requested revocation in ongoing reviews the opportunity to complete those reviews and obtain a revocation should they meet the regulatory requirements in effect when that review was initiated.

Some commenters agree with the Department's assertion that, pursuant to the existing regulation, the Department is required to expend additional resources, including additional mandatory verifications, in conducting administrative reviews when company-specific revocations are being considered. They assert, therefore, that the change will help to conserve resources as the Department will save money by not having to conduct “mandatory verifications.” They also argue that the Department will have fewer requests for review, as companies that are already subject to low deposit rates will be less likely to request a review and there will be less of an incentive for companies to “engineer” sales for purposes of achieving revocation, rather than for normal commercial considerations. The parties contend that the Department will also save resources by not having to conduct the changed circumstance reviews that are currently needed to determine whether an exporter, once revoked, needs to be reinstated in the order. Finally, they contend that removal of the country-wide revocation procedures is permissible and would result in further cost savings.

Another party cites to burdens on the U.S. government that are created by circumvention and evasion of trade relief with respect to certain trade remedies, and asserts that such circumstances demonstrate the importance of the proposed changes to the revocation regulations. It asserts that the individual exporter exclusions provided for under the regulations at issue substantially complicate U.S. Customs and Border Protection's responsibilities for enforcement of antidumping orders, and cites to certain duty evasion issues that the U.S. government experienced while administering certain antidumping measures. It contends that company-specific exclusions can also necessitate a significant allocation of resources by the domestic industry to monitor shipments, and try and prevent circumvention of the trade relief.

Some commenters assert that revocations actually reduce administrative burdens by eliminating the need for administrative reviews of companies that are revoked from an antidumping or countervailing duty order, and that by continuing to grant company-specific revocations the Department will free up resources to review other companies. One party asserts that there is no reason to presume that the availability of revocations increases the number of proceedings the Department must undertake. For example, it contends that in a case with a small number of exporters to the U.S. market, revocations could reduce the Department's case load. Other commenters assert that it would be an inefficient use of resources to review companies over and over when they have demonstrated that they do not engage in dumping. A few parties contend that the Proposed Rule will consume more resources because companies will never have a chance for revocation and will bear the expense and burden of participating in more reviews. Some commenters request that the Department find other ways to reduce burdens so that it is able to continue to administer company-specific revocations under the regulations at issue ( e.g., create a more efficient and less rigorous process for administrative reviews, make verifications discretionary, allow exporters to certify they are not dumping when they believe that to be the case).

One party argues that because the number of companies who are eligible for a company-specific revocation is so small, the additional resources, including additional mandatory verifications that the Department cites as a reason for the proposed change, cannot be so great. It also asserts that over time the proposed change will increase the resources expended on reviews as companies continue to request reviews to receive zero or low duty rates. The same party asserts that if the company-specific revocation regulations remain in effect, the Department and other U.S. federal agencies ( e.g., Customs and Border Protection) may ultimately save resources as the pool of respondents subject to review diminishes over time.

Another party asserts that since money is collected from respondent parties in the form of antidumping duties and it is relatively inexpensive to conduct a revocation proceeding, the Department should not eliminate the revocation provision in the name of resource constraints. It argues that any additional resources that may be required for considering a revocation request are minimal, and suggests that the Department instead conserve resources by limiting the ability of domestic producers to request verification.

Response to Comments: The Department believes that the change will result in savings as it will no longer have to expend the additional resources associated with the conduct of administrative reviews, particularly mandatory verifications, when requests for company-specific revocations are being considered. In addition, the Department anticipates cost savings from not having to conduct changed circumstances reviews currently needed to determine whether an exporter, once excluded, should be reinstated in the order.

With regard to various conflicting arguments that the change will result in either a decrease or an increase in the number of reviews that are requested and, therefore, that cost savings may or may not actually be realized, we find them to be based on speculation as to the motivations of individual parties who may request reviews. Pursuant to 19 CFR 351.213(b), an administrative review of an exporter or producer may be requested by a domestic interested party, a foreign government, an exporter or a producer, or an importer. The Department is in no position to determine for any given proceeding what a particular party's motivations would be in deciding to request a review and how the change may influence its decision. However, the Department would note that there would be no reason for a respondent, with a zero or de minimis cash deposit rate, to request another administrative review but for the possibility of revocation.

Regarding the comment suggesting the elimination of the country-wide revocation procedures as an additional means to save resources, the Proposed Rule and this Federal Register notice only pertain to company-specific revocations and the issues the Department has experienced and hopes to resolve by eliminating those types of revocations. The Final Rule does not include any changes to the parts of the revocation regulations that concern country-wide revocations.

With regard to the suggestion that company-specific revocations should be eliminated because they may be tied to circumvention or duty evasion issues that necessitate a significant allocation of resources by the domestic industry to monitor shipments, we have not relied on this claim as a basis for our decision to implement the proposed rule since we do not have evidence of increased burdens associated with such monitoring.

With regard to the suggestion that the Department conserve resources by limiting the ability of domestic producers to request verifications, we find that our current regulations provide appropriate guidance and flexibility for the conduct of verifications requested by domestic producers in light of the Department's resource considerations. Finally, if necessary, we may in the future consider additional cost-savings measures in addition to the savings associated with the changes made by this rule.

Several commenters assert that the small portion of companies found to be eligible for company-specific revocation is not a relevant factor to cite in support of changing the regulations. One commenter asserts that such a statistic is simply a consequence of the difficulty of satisfying the requirements for revocation. Another asserts that this measurement is not relevant to the antidumping orders on exports from its country because a number of companies were revoked from one of those antidumping orders. Several commenters argue that the small number of company-specific revocations supports that the existing revocation regulations do not have a material impact on the Department's resources.

Response to Comments: We disagree with the assertion that the number of reviewed companies that the Department has ultimately found to be eligible for a company-specific revocation is not an important factor to cite in support of modifying 19 CFR 351.222. As indicated in the Proposed Rule, while the Department annually conducts administrative reviews of hundreds of foreign companies subject to antidumping or countervailing duty orders, only a small fraction of the reviewed companies are ultimately found to be eligible for a company-specific revocation. Moreover, in evaluating this matter in terms of the burden and administrative procedures involved, it is important to consider that many of the companies that request a company-specific revocation under the regulations at issue go through the process of being reviewed but are, ultimately, not found to be eligible for a company-specific revocation. We examined the review requests for orders that were in effect between 2005 and 2009 and learned that roughly 75% of the company-specific revocation requests that we received ultimately were denied. Many of the companies that requested partial revocation under the regulations at issue did not obtain one because either: (1) The company was still dumping; (2) the company did not make sales in commercial quantities; (3) the company withdrew its request for revocation and/or review after we initiated the review; (4) a revocation of the entire order via the sunset review process took place prior to completion of our review of the company-specific revocation request; or (5) the company was not selected as a respondent because the Department did not have the resources to proceed with a company-specific examination. Thus, with the status quo, the Department can expect to continue to expend significant resources examining unsuccessful requests for company-specific revocations. Instead, the Department has determined, in part, to eliminate the disconnect between the large amount of resources expended conducting these company-specific revocation reviews and the few companies that benefit.

We also disagree with the assertion by one commenter that, with respect to antidumping orders on exports from its country, the small fraction of the reviewed companies the Department ultimately found eligible for a company-specific revocation is not a relevant factor to cite in support of modifying 19 CFR 351.222. The commenter indicates that a number of companies were revoked from one of the antidumping orders on imports from its country. Nonetheless, in evaluating and deciding on this particular change to the regulations our focus has been on all antidumping and countervailing duty orders/measures that are administered by the Department, not just revocation requests for one particular measure, industry, or country.

Some parties agree with the Department's reliance on this factor. Others argue that, when companies maintain antidumping or countervailing duty rates of zero percent, both the Department and interested parties are expending resources on reviews of companies that are unlikely to dump or receive countervailable subsidies in the future. Another party asserts that the Department's rationale does not take into account the unpredictability and costs imposed by antidumping and countervailing duty orders. One party comments that the Department appears to be saying that its proposal is revenue neutral because it would not affect the amount of duties applied, and asserts that the amount of revenue collected in antidumping or countervailing duties is not a matter within the jurisdiction of the Department.

Response to Comments: The Department's statement is a matter of fact—if a company maintains an antidumping or countervailing duty rate of zero, its duty liability will not change as a result of this amendment. As for arguments concerning the expenditure of resources in the conduct of reviews for companies that maintain zero dumping or countervailing duty rates, such arguments are based on conjecture about the future pricing behavior of those companies and future subsidization by governments. It also assumes that interested parties will request reviews of those companies. We are not in a position to predict such future behavior. The Department's point is that, as long as a company maintains a dumping or countervailing duty rate of zero, it will incur no antidumping or countervailing duty liability. The Department's reference to this change not impacting the amount of duties collected was simply an effort to consider the burden of the proposal on parties, and not in consideration of the impact on U.S. revenue.

Certain commenters favoring the proposed change to the revocation regulations assert that it will result in a more equitable administration of the antidumping and countervailing duty proceedings for both the petitioners and respondents. One of these commenters claims that company-specific revocations can improperly advantage certain producers or exporters over others, and that such inequities also create difficulties for petitioners in ensuring that orders are effective in eliminating injurious dumping and subsidization.

Several commenters assert that the current company-specific revocation regulations do a good job of promoting equity by revoking orders against companies that are not dumping or receiving countervailable subsidies. They also assert that when such revocations result in one less company to review, it permits companies not previously examined an opportunity to be selected for examination. One commenter contends that there is no reason to deny the important benefits of company-specific revocations simply because it may be impractical in every case. The party also asserts that there are other benefits in the antidumping and countervailing duty regime that are applied unevenly (notably, the ability to obtain one's own margin, as opposed to an average of other rates). Some commenters suggest that the Department adopt new procedures that will allow for all interested and eligible exporters to participate in reviews to the extent necessary to achieve revocation. A few commenters assert that certain factors we cite in support of this change to the revocation regulations do not apply to the unique circumstances of trade remedy measures on their exports ( e.g., certain cases involve a “manageable” number of companies and, therefore, the Department should not be concerned with companies in those cases not having an opportunity to be reviewed and amass the requisite zero rates).

Response to Comments: The Department continues to find that this change to the regulations will, in general, result in a more equitable administration of the antidumping and countervailing duty proceedings. In particular, and as explained in the Proposed Rule, many of the companies for which reviews are requested may not have the opportunity to amass the three antidumping rates of zero percent (demonstrating an absence of dumping for three consecutive years) or five countervailing duty rates of zero percent (demonstrating an absence of countervailable subsidies for five consecutive years) necessary to be eligible for a company-specific revocation. See Proposed Rule, 76 FR 15234. This is because it is often not practicable for the Department to examine all companies for which reviews have been requested, and where such circumstances exist, the Act permits the Department to limit the number of companies it individually examines. Rather than administering the company-specific revocation regulations in a manner that does not afford equitable opportunity to all companies to seek revocation, and in light of the comments and various factors noted in the Proposed Rule and this Federal Register notice, the Department is eliminating the company-specific revocation regulations. Moreover, by eliminating the need to obtain two/four subsequent reviews for revocation, the Department anticipates that fewer companies with zero or de minimis deposit rates will request reviews, freeing up limited resources to consider the antidumping or countervailing duty rates of other companies.

With regard to the suggestion that the Department develop or adopt new company-specific revocation procedures, the Department has not identified any new procedures for company-specific revocations that would address all the reasons it has for discontinuing such revocations. As for the commenters that assert that our reasons for discontinuing company-specific revocations do not apply to a particular antidumping or countervailing duty order, we do not find that any sort of differential treatment would be appropriate.

One commenter states that the genesis of this proposal was an August 2010 announcement by the Secretary of Commerce to strengthen trade enforcement with a particular focus on illegal import practices from non-market economy countries. The commenter contends that there is little correlation between illegal import practices from non-market economies and the Proposed Rule, and asserts that the Secretary's concerns are more appropriately addressed by other items mentioned in the August 2010 announcement.

Response to Comments: This proposal was identified in the August 26, 2010, announcement of a Trade Law Enforcement Package to strengthen the administration of the nation's trade remedy laws. In making the announcement about this initiative, addressing illegal import practices from non-market economies was highlighted as an objective, but that objective is secondary to the overall purpose of the initiative which is to strengthen the administration of the nation's trade remedy laws. Further, in the Proposed Rule, and in the above sections of this notice, the Department provides a detailed explanation and information about the factors that warrant this amendment. Those factors and the rule change are not specific to imports from any one country or type of economy (market or non-market).

Several commenters assert that the Department should maintain the existing rules for company-specific revocations as a direct incentive to induce individual foreign firms to adjust prices and eliminate dumping or receiving subsidies. Another party comments that such revocations give respondents hope that if they comply with the United States antidumping and countervailing duty laws, their efforts may be recognized and rewarded by revocation. Another party asserts that company-specific revocations ensure that U.S. manufacturers, retailers and consumers are not denied access to fairly traded goods.

Response to Comments: While we appreciate that companies may wish to retain the opportunity to be revoked from an order, as we noted under Comment 1, there is no obligation under U.S. law or the WTO Agreements to provide for such company-specific revocations. Moreover, if a foreign firm stops dumping or receiving countervailable subsidies, it will eliminate its liability for antidumping and countervailing duties, and U.S. manufacturers will have full access to its fairly traded goods. Finally, the antidumping and countervailing duty laws do not exist to reward any behavior. Instead, these laws exist to provide a remedy for injurious market-distorting unfair trade practices. The imposition of a remedial duty discourages such practices to the extent they are found to exist. As noted above, by maintaining a zero dumping margin or zero subsidy rate, companies avoid liability for these duties.

Several commenters request that the Department not change its revocation policy until it conducts a review of the impact of the change on consuming industries and other parties that utilize imports that are subject to antidumping or countervailing duty orders. They assert that such parties will be negatively affected as a result of the Department performing administrative reviews of individual companies that would have otherwise been revoked from an order. One commenter asserts that the proposed change would restrict the ability of U.S. retailers to provide consumers with a variety of high-quality products at affordable prices, undermine U.S. competitiveness, put U.S. jobs at risk, and undermine the Administration's goal of doubling U.S. exports.

Response to Comments: With respect to the comment about consuming industries and other parties that utilize imports that are subject to antidumping or countervailing duty orders, 5 U.S.C. 605(b) requires that the Department consider the “economic impact on a substantial number of small business entities” which includes such parties. The Department provided the analysis required by 5 U.S.C. 605(b) when it issued the Proposed Rule . See Proposed Rule, 76 FR at 15234. More specifically, the Department explained that in the past five years, despite conducting administrative reviews of well over five hundred companies, only 15 companies (of various sizes) have obtained a company-specific revocation under the relevant portions of 19 CFR 351.222. We also believe that in considering the economic impact that this change may have, it is important to take into account the fact that less than two percent of all imports of goods into the United States are subject to antidumping or countervailing duties, and only a very small portion of those imports will ever be affected by this change to the revocation regulations. For these reasons, we continue to find that this change to the revocation regulations will not have a significant economic impact.

One commenter urges that, in light of this regulatory change, the Department should consider carefully its methodology for calculating the rate that is assigned to respondents that are not selected for individual review when the Department limits its examination in an administrative review. It notes that when the Department limits its examination to the largest exporters, it applies to the non-examined companies the average of the individual margins assigned to the mandatory respondents, except for any margins that are zero, de minimis, or based on adverse facts available. It also notes that when all of the mandatory respondents receive margins that are zero, de minimis or based on adverse facts available, the Department bases the margin for the non-selected respondents on the most recently calculated affirmative margin from a previous administrative review. It asserts that this situation is likely to arise with far greater frequency once zeroing in administrative reviews is eliminated and the revocation regulations are modified. It also asserts that over time, a margin for non-selected companies identified in this manner could be based on a margin calculated several years in the past and it would no longer be a reasonable approximation of the pricing behavior of non-selected respondents.

Response to Comments: With regard to the Department's practice or methodology for calculating the rate that is assigned to respondents that are not selected for individual review when the Department limits its examination, we believe it would be premature to try and address that issue in the context of a change to the revocation regulations. It would be more appropriate to evaluate that issue in the context of future antidumping or countervailing duty proceedings.

One company cites to the possible elimination of zeroing in AD reviews (see Antidumping Proceedings: Calculation of the Weighted Average Dumping Margin and Assessment Rate in Certain Antidumping Proceedings, 75 FR 81533 (December 28, 2010)), and asserts that if the Department stops zeroing, one would expect that a significant number of exporters may qualify for revocation in the years following the change. Another company suggests that eliminating zeroing while retaining the possibility of revocation should materially reduce the Department's workload after a few years; however, if the Department eliminates both zeroing and revocation, then the Department will waste its resources in repetitious reviews of companies with zero margins.

Response to Comments: On February 14, 2012, in response to several WTO dispute settlement reports, the Department adopted a revised methodology which allows for offsets when making average-to-average comparisons in reviews. See Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Duty Proceedings; Final Modification, 77 FR 8101 (February 14, 2012). (“Final Modification for Reviews”). The Final Modification for Reviews makes clear that the revised methodology will apply to antidumping duty administrative reviews where the preliminary results are issued after April 16, 2012. The revision to our calculation methodology in antidumping duty administrative reviews was made to implement certain findings by the WTO Appellate Body with respect to that methodology in several disputes. See United States-Laws, Regulations and Methodology for Calculating Dumping Margins, WT/DS294/R, WT/DS294/AB/R, adopted May 9, 2006; United States-Measures Related to Zeroing and Sunset Reviews, WT/DS322/R, WT/DS322/AB/R, adopted Jan. 23, 2007; United States-Final Anti-Dumping Measures on Stainless Steel From Mexico, WT/DS344/R, WT/DS344/AB/R, adopted May 20, 2008; United States-Continued Existence and Application of Zeroing Methodology, WT/DS350/R, WR/DS350/AB/R, adopted Feb. 19, 2009. The Department's decision to change the revocation regulations has been made without regard to, and irrespective of, the change in our calculation methodology as a result of the implementation. Moreover, the comments regarding the possible effects of the proposed revision to our calculation methodology in antidumping duty reviews are based solely upon speculation.

Several parties indicate that with respect to revocation or termination in whole, the Department's regulations would remain substantively unchanged and, therefore, in addressing whether or not to award revocation or termination in whole, the Department will need to consider whether “all exporters and producers” have not dumped for at least three consecutive years or have not applied for or received any net countervailable subsidy for at least five consecutive years, respectively. In light of the fact that the Department often reviews individually only a small number of the foreign exporters and producers covered by an order, they ask the Department to consider and address how these prerequisites for revocation or termination in whole are to be satisfied. They propose that each foreign exporter or producer must demonstrate affirmatively that it met these conditions for the prescribed number of years before revocation or termination in whole will be granted by the Department. One of these parties also asked the Department to consider how to address revocation requests when all mandatory respondents receive rates of zero percent for the requisite number of years under § 351.222(b)(1) and (c)(1)-(2); in particular, whether these rates would be assigned to all non-reviewed companies and, if so, whether the order in whole would then be eligible for revocation. One commenter suggests that in addition to withdrawing the regulations establishing company-specific revocations at 19 CFR 351.222(b)(2) and (3) and 351.222(c)(3) and (4), the Department should withdraw its regulations providing for country-wide revocations.

Response to Comments: We generally agree with the commenters' assertion that each foreign exporter or producer would have to demonstrate that it met the regulatory requirements for the prescribed number of years before revocation or termination in whole could be granted by the Department. With regard to considering how to address revocation requests when all mandatory respondents receive rates of zero percent for the requisite number of years under §§ 351.222(b)(1) and (c)(1)-(2), we believe it is premature to decide whether such circumstances would warrant a revocation of an order in whole. We will address any such scenarios as they arise in the context of future antidumping or countervailing duty proceedings. In addition, we have not adopted the suggestion that in addition to withdrawing the regulations establishing company-specific revocations at 19 CFR 351.222(b)(2) and (3) and 351.222(c)(3) and (4), the Department should withdraw its regulations providing for country-wide revocations at 19 CFR 351.222(b)(l) (dumping) and 351.222(c)(1) and (2) (subsidies). The Proposed Rule and this Federal Register notice only pertain to company-specific revocations and the issues the Department has experienced and hopes to resolve by eliminating those types of revocations. See the Proposed Rule and Comment 4 above.

Several commenters requested that the Department not withdraw the subsections of the revocation regulations that deal with the reinstatement of partially revoked orders ( i.e., 19 CFR 351.222(b)(2)(i)(B), (e)(1)(iii) (antidumping duty orders) and (c)(3)(i)(B), (e)(2)(iii)(D) (countervailing duty orders)). They contend that if the subsections are removed, it is unclear what recourse would be available to the Department in the event that companies, for which orders have already been partially revoked, resume making U.S. sales at dumped prices or resume benefitting from countervailable subsidies in violation of trade remedy laws. They suggest that in light of the proposed amendments to 19 CFR 351.222, the Department should maintain the rules that would provide for the reinstatement of partially revoked antidumping and countervailing duty orders. One party suggests that the Department maintain the current version of § 351.222(b)(2)(i)(B), (c)(3)(i)(B), (e)(1)(iii), and (e)(2)(iii)(D) in its regulations but clarify that they apply only to orders that have been partially revoked prior to the effective date of the change in regulations.

Response to Comments: We have not adopted the changes proposed by these parties. Any company that has been revoked from an antidumping or countervailing duty order will remain subject to its certified agreement to be reinstated with respect to that order if the Department finds it to have resumed dumping or to be benefitting from a countervailable subsidy. The modification does not absolve the company from its obligations under its existing agreement.

Two commenters assert that the Department made a typographical error in § 351.222(e)(1)(i) of the proposed amendment to the revocation regulations. One commenter suggests that the term “the person” may need to be changed to the plural form to conform to “all exporters and producers.” The other suggests that the reference to “the person” be changed to “the exporter or producer in each instance.”

Response to Comments: We agree that there is a typographical error in § 351.222(e)(1)(i) of the Proposed Rule . The term “the person” needs to be in a plural form, so we have changed the term to “they”.

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

The Chief Counsel for Regulation has certified to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”) under the provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), that the proposed rule would not have a significant economic impact on a substantial number of small business entities. The factual basis for the certification was published in the Proposed Rule . The Department received comments regarding the factual basis for this decision, and has summarized and responded to those comments in the above section of this notice entitled “Comment 4—Reasons for Discontinuing Company-Specific Revocations”. Based upon the Department's analysis, as discussed above, the factual basis used in the Proposed Rule to determine that the rule, if promulgated, would not have a significant impact on a substantial number of small business entities did not change. As a result, a Final Regulatory Flexibility analysis is not required and has not been prepared.

This rule does not contain a collection of information for purposes of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et seq. ).

For the reasons stated, 19 CFR part 351 is amended as follows:

Section 155 of the Dodd-Frank Act, Public Law 111-203 (July 21, 2010), directs the Secretary of the Treasury to establish by regulation, and with the approval of the Council, an assessment schedule to collect assessments from certain companies equal to the total expenses of the Office beginning on July 20, 2012. Section 155 describes these companies as:

(A) Bank holding companies having total consolidated assets of $50 billion or greater; and

(B) Nonbank financial companies supervised by the Board.

Under Section 118 of the Dodd-Frank Act, the expenses of the Council are considered expenses of, and are paid by, the OFR. In addition, under Section 210 implementation expenses associated with the FDIC's orderly liquidation authorities are treated as expenses of the Council, 1 and the FDIC is directed to periodically submit requests for reimbursement to the Council Chair. The total expenses for the OFR thereby include the combined expenses of the OFR, the Council, and certain expenses of the FDIC. All of these expenses are paid out of the Financial Research Fund (FRF), a fund managed by the Department of the Treasury for this sole purpose.

The Council was established by the Dodd-Frank Act to coordinate across agencies in monitoring risks and emerging threats to U.S. financial stability. The OFR was established within the Treasury Department by the Dodd-Frank Act to serve the Council, its member agencies, and the public by improving the quality, transparency, and accessibility of financial data and information, by conducting and sponsoring research related to financial stability, and by promoting best practices in risk management.

The authority for this regulation is Section 155(d) of the Dodd-Frank Act, which directs the Secretary of the Treasury to establish an assessment schedule by regulation, including the assessment base and rates, with the approval of the Council.

This final rule and interim final rule direct (a) how the Treasury will determine which companies will be subject to an assessment fee, (b) how the Treasury will estimate the total expenses that are necessary to carry out the activities to be covered by the assessment, (c) how the Treasury will determine the assessment fee for each of these companies, and (d) how the Treasury will bill and collect the assessment fee from these companies. The final rule applies to bank holding companies and foreign banking organizations; the interim final rule applies to nonbank financial companies. The comment period for the interim final rule is 120 days.

Bank holding companies that have eligible assets of $50 billion or more will be subject to assessments, where eligible assets are calculated as the average of a company's total consolidated assets for the four quarters preceding the determination date. Foreign banking organizations that have eligible assets of $50 billion or more will be subject to assessments, where eligible assets are calculated as the average of the company's total assets of combined U.S. operations for the four quarters preceding the determination date. (For foreign banking organizations that only report to the Federal Reserve annually, eligible assets are calculated as the average of the company's total assets of combined U.S. operations for the two years preceding the determination date.) All nonbank financial companies supervised by the Board will be subject to assessments.

For each assessment period, the Department will calculate an assessment basis that is sufficient to replenish the FRF to a level equivalent to the sum of the operating expenses of the OFR and the Council for the assessment period, the capital expenses for the OFR and the Council for the 12-month period beginning on the first day of the assessment period, and an amount necessary to reimburse reasonable implementation expenses of the FDIC orderly liquidation authorities. For the initial assessment covering July 21, 2012 to March 31, 2013, the assessment basis will be calculated as the sum of the operating expenses for the OFR and the Council during this time period, the capital expenses for the OFR and the Council for July 21, 2012 to April 30, 2013, and the amount necessary to reimburse reasonable implementation expenses of the FDIC orderly liquidation authorities.

Assessments for each company will be calculated as the product of a company's eligible assets and a fee rate, where the fee rate is set to replenish the FRF to the levels defined in the preceding paragraph. Fee rates will be published roughly one month prior to collections, with billing at least 14 days prior to collections. Collections will be managed through www.pay.gov, and will generally occur on March 15 and September 15. Determination dates will generally be November 30 and May 31 of each year. The determination date for the initial assessment will be December 31, 2011.

The assessment and collection of fees described in this rule represent an economic transfer from assessed companies to the government, for purposes of providing the benefits associated with coordinated identification and monitoring of risks to U.S. financial stability, promoting market discipline, and responding to emerging threats to the U.S. financial system. As such, the assessments do not represent an economic cost. However, the allocation of the assessment may have distributional impacts. Treasury estimates that approximately 50 companies will be determined as eligible for the initial assessment, and in addition the estimated cost for each company of filling out the forms and submitting payment to the Treasury Department will be $600.

Section 155 of the Dodd-Frank Act, Public Law 111-203 (July 21, 2010), directs the Secretary of the Treasury to establish by regulation, and with the approval of the Council, an assessment schedule to collect assessments from certain companies equal to the total expenses of the Office beginning on July 20, 2012. Section 155 describes these companies as:

(A) Bank holding companies having total consolidated assets of $50 billion or greater; and

(B) Nonbank financial companies supervised by the Board.

Under Section 118 of the Dodd-Frank Act, the expenses of the Council are considered expenses of, and are paid by, the OFR. In addition, under Section 210 implementation expenses associated with the FDIC's orderly liquidation authorities are treated as expenses of the Council, 2 and the FDIC is directed to periodically submit requests for reimbursement to the Council Chair. The total expenses for the OFR thereby include the combined expenses of the OFR, the Council, and certain expenses of the FDIC. All of these expenses are paid out of the Financial Research Fund (FRF), a fund managed by the Department of the Treasury.

The Council was established by the Dodd-Frank Act to coordinate across agencies in monitoring risks and emerging threats to U.S. financial stability. The Council is chaired by the Secretary of the Treasury and brings together all federal financial regulators, an independent member with insurance expertise appointed by the President, and certain state regulators. Under the Dodd-Frank Act, the Council is tasked with identifying and monitoring risks to U.S. financial stability, promoting market discipline, and responding to emerging threats to the U.S. financial system. 3

The OFR was established within the Treasury Department by the Dodd-Frank Act to serve the Council, its member agencies, and the public by improving the quality, transparency, and accessibility of financial data and information, by conducting and sponsoring research related to financial stability, and by promoting best practices in risk management. Among the OFR's key tasks are:

• Measuring and analyzing factors affecting financial stability and helping FSOC member agencies to develop policies to promote it;

• Collecting needed financial data, and promoting their integrity, accuracy, and transparency for the benefit of market participants, regulators, and research communities;

• Reporting to the Congress and the public on the OFR's assessment of significant financial market developments and potential threats to financial stability; and

• Collaborating with foreign policymakers and regulators, multilateral organizations, and industry to establish global standards for data and analysis of policies that promote financial stability.

On January 3, 2012, the Treasury published a proposed rule (77 FR 35) to establish procedures to estimate, bill, and collect, on an ongoing basis beginning on July 20, 2012, the total budgeted expenses of the OFR, including those estimated separately by the Council for the Council's expenses, and expenses submitted by the FDIC. 4 As described in the proposed rule, the aggregate of these estimated expenses would provide the basis for an assessment that the Treasury would collect through a semiannual fee on individual companies based on each company's total consolidated assets. For a foreign company, the assessment fee would be based on the total consolidated assets of the foreign company's combined U.S. operations.

The proposed rule outlined how the Treasury's assessment fee program would be administered, including (a) how the Treasury would determine which companies will be subject to an assessment fee, (b) how the Treasury would estimate the total expenses that are necessary to carry out the activities to be covered by the assessment, (c) how the Treasury would determine the assessment fee for each of these companies, and (d) how the Treasury would bill and collect the assessment fee from these companies. Treasury sought comments on all aspects of the proposed rulemaking. See 77 FR 35 for a complete discussion of the proposal.

The final rule is adopted essentially as proposed for bank holding companies and foreign banking organizations, with an adjustment to the timeframe for assessment collections. The rule for nonbank financial companies is issued as an interim final rule, reflecting the Treasury's intent to evaluate the assessment schedule for nonbank financial companies as the Council implements its authority to determine companies for enhanced supervision by the Board. 5 In response to comments received, several technical and administrative changes were made to clarify these rules, which are discussed below.

The Treasury received 12 comment letters on the proposed rule. Six comment letters were from associations that represent financial institutions (including one joint letter sent by five associations); two comment letters were from insurance companies; two comment letters were from individuals; one comment letter was from an association that represents financial professionals; and one comment letter was from a public interest group. For the reasons that follow, the Treasury has determined to adopt this rule and interim final rule as follows.

Comments were received in the following broad categories:

• Assessment methodology

○ Use of total consolidated assets to calculate total assessable assets

○ Other assessment methodology comments

• Assessments on nonbank financial companies

• Assessment basis and administration

• Assessment timeframe

• Term definitions

• Comments of general support

Six of the comment letters from associations that represent financial institutions and insurance companies were critical of the proposed use of total consolidated assets to allocate the assessment basis to assessed companies. The letters argued that total consolidated assets alone was an insufficient representation of the risk factors outlined in Section 115(a)(2)(A) of the Dodd-Frank Act as referenced in Section 155(d) of the Act, and would not be sufficient to differentiate risk levels between companies for purposes of assessments. Two comment letters suggested alternative assessment approaches. One commenter suggested that the methodology be based on the six-category framework used to evaluate the potential for a nonbank financial company to pose a threat to U.S. financial stability, as outlined in the Council's rule on determination of nonbank financial companies for heightened supervision by the Board. Another commenter suggested that it be based on the risk-adjusted assessment schedule used by the FDIC to collect deposit insurance premiums from banks and thrifts. Two of the comment letters, while expressing the concerns described above, also noted that using total consolidated assets to calculate assessable assets was simple, clear and transparent.

One comment letter supported the proposal to base calculation of total assessable assets for foreign banking organizations on assets of combined U.S. operations and to only assess those companies with more than $50 billion in total assessable assets. The comment letter noted that these two features of the rule will facilitate administration of assessments and are consistent with the statutory requirement that the assessment schedule take into account differences among assessed companies, based on the considerations set forth in Section 115.

The Treasury's proposed implementation of Section 155  6 was guided by the following principles:

• The assessment structure should be simple and transparent; and

• Allocation among companies should take into account differences among such companies, based on the considerations for establishing the prudential standards under Section 115 of the Dodd-Frank Act as required by the Act.

As stated in the Preamble to the Notice of Public Rulemaking, the Treasury believes there is significant benefit to adopting a standard that is transparent, well-understood by market participants, and reasonably estimable. Commenters suggested that this transparency and predictability was particularly important for foreign entities assessed. As discussed in the proposed rule, a number of different assessment schedules for assessing companies were considered, based on the two principles outlined above. After evaluating these different assessment schedules, the Treasury proposed to allocate the assessment basis among assessed companies based on the total consolidated assets of each company. The Treasury, after considering the comments, continues to believe that relying on the total consolidated assets of each assessed company to allocate assessments on a percentage basis is consistent with its legislative mandate and represents the best approach to take into account differences among companies based on the considerations in Section 115 while keeping the assessment structure simple and transparent. Applying each Section 115 factor with respect to each assessed firm could well require individualized subjective determinations, which would be impracticable as well as opaque, and would not be consistent with the statutory requirement to create an “assessment schedule, including the assessment base and rates.”  7 Similarly, the Treasury considered relying on an established ratings system, such as the CAMELS system employed by the FDIC, as suggested by one commenter. The Treasury deemed such an approach as inappropriate for the following reasons: first, the methodology to produce the CAMELS ratings is non-public, the ratings are confidential supervisory information , 8 and the rating system was developed for U.S. depository institutions. Second, the broad rankings provided by such a system (CAMELS ratings range from one to five) would require subjective translation by the Treasury into assessment levels, introducing complexity and opacity. The Treasury considered other methods to calculate assessments based on risk-weighted assets, but these proved unsatisfactory for similar reasons. After considering all of the Section 115 factors, the Treasury has determined that an assessment schedule based on total consolidated assets best achieves the statutory purpose.

As discussed further below, the rule has been modified to include a final rule applicable to bank holding companies and foreign banking organizations, and an interim final rule applicable to those entities that are identified by the Council's rulemaking for determination of nonbank financial companies for heightened supervision by the Board.

Two comment letters (the joint associations' letter and a second letter written by two authors of the joint letter) suggested that the Board continue providing funds to the FRF after July 21, 2012. Even if this suggestion could be reconciled with the statutory requirement that “[b]eginning 2 years after the date of enactment,” the Treasury shall “collect assessments equal to the total expenses of the Office,”  9 the imposition of additional requirements on the Board of Governors would be beyond the Treasury's authority under Section 155(d) and outside the scope of this rulemaking. 10

One comment letter suggested that since the Council and the OFR will likely be investing a significantly larger proportion of their resources researching and monitoring nonbank financial companies as opposed to bank holding companies, the assessment methodology should charge nonbank financial companies proportionately higher assessments. The letter further suggested creation of a credit system whereby previously assessed bank holding companies and nonbank financial companies would pay lower assessment rates when new companies are assessed. The Treasury notes that the Dodd-Frank Act requires that the Council and the OFR monitor the financial system and respond to threats to U.S. financial stability across the system. Mitigating current and potential future threats to financial stability provides benefits for financial market participants, including bank holding companies, foreign banking organizations, and nonbank financial companies. Likewise, previously assessed companies, as well as newly assessed companies, are beneficiaries of these activities to mitigate threats to financial stability. For these reasons, the Treasury believes that a consistent allocation irrespective of sequence of inclusion in the assessment pool or institution type is appropriate.

One comment letter suggested including language in the rule prohibiting banking institutions from passing OFR assessments through to retail or commercial customers in the form of fees or higher interest rates. The Treasury has considered this concern, but believes such a requirement would be difficult and costly to administer, and it is questionable whether such an approach would be permitted by the law.

One comment letter suggested that FDIC expenses associated with its orderly liquidation authorities should be well-defined to avoid shifting costs to OFR that should be borne by the FDIC. The Council and the FDIC have established guidelines for these expenses to ensure that only appropriate expenses are covered by the FRF.

Some commenters raised issues related to budget process, strategy and the creation of an advisory committee that are outside the scope of this rulemaking. Materials relevant to these issues may be found in the OFR's Strategic Framework for FY2012-FY2014 published on March 15, 2012  11 and in the notice of interest to establish a Financial Research Advisory Committee published in the Federal Register on March 22, 2012. 12

Seven of the comment letters, including those from associations that represent financial institutions and insurance companies, expressed concerns about using unadjusted total consolidated assets to allocate the assessment basis among nonbank financial companies. Three comment letters (from an insurance company and two associations) suggested that insurance separate accounts be excluded from total consolidated assets for purposes of assessments. One association suggested that private equity managed accounts be excluded from total consolidated assets for purposes of assessments. Another association suggested that all nonbank financial companies' non-financial assets be excluded from total consolidated assets for purposes of assessments.

In addition, several comment letters suggested alternative methods to assess nonbank financial companies or suggested that the Treasury delay its final rulemaking until after the Council has made determinations regarding nonbank financial companies for heightened supervision by the Board. One comment letter from an insurer suggested differentiating industries into classes based on their primary business activity and developing class-specific assessments based on Section 155 criteria. Two comment letters suggested delaying rulemaking for nonbank financial companies altogether until after the Council has made determinations of nonbank financial companies for heightened supervision by the Board. Two additional comment letters supported the intent to re-evaluate the assessment schedule for nonbank financial companies after the Council's rule on determination of nonbank financial companies is finalized and the Council has begun making determinations. One comment letter emphasized that assessments should be reasonably and fairly allocated across bank holding companies and nonbank financial companies. One comment letter requested clarification on how non-public nonbank financial companies would be treated under the rule and the manner in which information from these companies would need to be reported to the Treasury for purposes of assessments.

After reviewing these comments, the Treasury has decided to issue a final rule for bank holding companies and foreign banking organizations, and an interim final rule for nonbank financial companies. The comment period for the interim final rule for nonbank financial companies will be open for 120 days after the publication date of these rules, with possible extension. After the comment period, the Treasury will review the assessments schedule for nonbank financial companies and make adjustments to the nonbank financial company rule as necessary.

The bank holding company and foreign banking organization final rule and nonbank financial company interim final rule both rely on total consolidated assets to calculate assessable assets. The Treasury agrees that, to the extent practicable, the composition of total consolidated assets used to calculate assessable assets for nonbank financial companies, bank holding companies, and foreign banking organizations should be comparable. As the Council implements its authority to determine nonbank financial companies for heightened supervision by the Board, the Treasury will evaluate substantive accounting differences between total consolidated assets as reported by nonbank financial companies supervised by the Board, bank holding companies, and foreign banking organizations and review the need to make adjustments to its definition of total consolidated assets for nonbank financial companies.

Through its interim final rule, the Treasury continues to seek and consider comment on whether the methodology adopted here for determining the amount of the assessment for nonbank financial companies is appropriate and what alternative methodologies might be more appropriate. The Treasury also specifically seeks comments on the question of whether a single methodology for determining the amount of the assessment for nonbank financial companies is appropriate and, if not, what an appropriate framework for differentiating between nonbank financial companies might be.

The Treasury received comments on the assessment basis and assessment administration from two commenters.

One comment letter suggested that collecting 12 months of capital expenses, as opposed to six months of capital expenses, would result in an unnecessarily large amount of unused resources. Given the variability of timing for large-scale capital expenditures and the importance of avoiding unnecessary interruptions in budgeted investments, the Treasury believes it is necessary for each assessment to replenish the FRF to a total of 12 months of capital expenditures. The final rule and interim final rule retain the provision for each assessment to replenish the FRF to a level equivalent to six months of operating and 12 months of capital expenses for the FSOC and OFR.

One commenter noted that the initial assessment basis will include operating expenses through March 31, 2013, capital expenses for the OFR and the Council through April 30, 2013, and the FDIC's implementation expenses through September 30, 2013. To clarify these dates, the first assessment in July 2012 is transitional and includes operating expenses for the remainder of fiscal year 2012 (July 21, 2012 to September 30, 2012), the first six months of fiscal year 2013 (October 1, 2012 to March 31, 2013) and an amount necessary to reimburse reasonable implementation expenses of the FDIC, as provided under section 210(n)(10) of the Dodd-Frank Act. Rather than collect 12 months of capital expenses in the initial assessment, as a smoothing measure the initial assessment includes capital expenses for the remainder of FY2012 (July 21, 2012 to September 30, 2012) plus the first seven months of FY2013 capital expenses (covering October 1, 2012 to April 30, 2013), for a total of approximately nine months of capital expenses. The second assessment will bring capital funding in the FRF up to the full 12-month level contemplated in the rule.

One comment letter expressed concern that the reports used to calculate a foreign banking organization's U.S.-based assets in the proposed rule do not report assets on a consolidated basis, so that referencing data from multiple reports could result in double-counting. The commenter requested greater clarity on what line items will be used from each report to determine total assessable assets for foreign banking organizations and suggested that the confirmation statement sent to foreign banking organizations include a list of financial report line items used to calculate assessable assets. Treasury will make every effort to avoid double counting, consulting with the Board and the affected firms as necessary. Any questions can be addressed through the appeals process.

Under the proposed rule, semiannual determination dates for a typical year would be December 31 and June 30. Confirmation statements to assessed companies would be sent out approximately two weeks after the determination date (and no later than 30 days prior to the first day of the assessment period); publication of the Notice of Fees would be about one month prior to the payment date; and billing would occur at least 14 calendar days prior to the payment date. Two comment letters noted that this time schedule for assessment collections allowed too little time for assessed companies to prepare appeals to assessments and too little time for companies with less liquid portfolios to arrange payments. Ambiguities in the dates for issuance of confirmation statements and publication of the Notice of Fees were also noted in the letters. The commenters proposed extending the time between issuance of the confirmation statement and billing date to allow more time for appeals and payment arrangements.

The Treasury has considered these comments and is persuaded that an adjustment, as described below, is appropriate. In this final rule and interim final rule, the determination dates for a typical year are moved back one month (to November 30 and May 31); confirmation statements will be sent out 15 calendar days after the determination date (December 15 and June 15); written appeals requesting a redetermination would need to be provided by January 15 or July 15 (under the guidelines outlined in the NPRM); publication of the Notice of Fees will be on February 15 and August 15; and billing will be on March 1 and September 1 for payment on March 15 and September 15. (See table below.) If the Treasury receives a written request for redetermination from a company by these dates, the Treasury will consider the company's request and respond with the results of a redetermination within 21 calendar days, if the Treasury concludes that a redetermination is warranted. If one of the dates referenced falls on a holiday or weekend, aside from the Billing Date, the effective date will be the next business day. (For the Billing Date, if the date referenced falls on a holiday or weekend, the effective date will be the first preceding business day.) The initial determination date, confirmation statement date, publication of Notice of Fees, billing date, and payment date are as outlined in the NPRM. These changes to the rule will provide assessed companies additional time to prepare appeals and make payment arrangements, as well as permit the Treasury additional time to calculate assessments, administer the billing process, and receive payments, as suggested in the comment letters. The table below shows dates of the assessment billing and collection process:

Several comment letters suggested clarifications to term definitions in the rule.

One comment letter requested clarification on the conditions and procedure under which a company would cease to be an assessed company. Another comment letter stated that companies that cease to be assessable companies between the initial determination date and start of the initial assessment period should not be assessed.

Under the definitions provided in this rule, companies meeting the following conditions will not be determined to be assessable companies on the determination date:

• For bank holding companies as defined in Section 2 of the Bank Holding Company Act of 1956, the average total consolidated assets (Schedule HC—Consolidated Balance Sheet), as reported on the bank holding company's four most recent Consolidated Financial Statements for Bank Holding Companies (FR Y-9C; OMB No. 7100-0128) submissions, is below $50 billion;

• For foreign banking organizations, the average of total assets at the end of a period (Part 1—Capital and Asset Information for the Top-tier Consolidated Foreign Banking Organization), as reported on the foreign banking organization's four most recent Capital and Asset Information for the Top-tier Consolidated Foreign Banking Organization (FR Y-7Q; OMB no. 7100-0125), is below $50 billion;  13

• For nonbank financial companies, the company is not determined by the Council to be required to be supervised by the Board under Section 113 of the Dodd-Frank Act.

Companies that are determined to be assessable companies on the determination date for an assessment period will be assessed for that assessment period according to the rule. The assessment schedule is structured so that the sum of assessments on individual companies equals the sum total necessary to support the duties of the Council and the OFR during each period plus implementation expenses associated with the FDIC's orderly liquidation authorities. Changes to one company's assessment for a particular period would necessitate a change in all other companies' assessments so that the aggregate of all assessment fees equals the assessment basis for the period. The Treasury believes that the burden and uncertainty that such changes would bring are too high to warrant attempting to delineate a process to allow changes to the information used by the Treasury to make its determinations, or adjust the company's semiannual fee determined by the published assessment fee schedule. The Treasury believes this burden and uncertainty would be issues for the initial assessment period as they are for subsequent assessment periods.

One comment letter requested the rule include a list of financial reports that will be used to calculate total assessable assets for foreign banking organizations. While the list of financial reports that the Treasury anticipates it will use to calculate total assessable assets for foreign banking organizations are listed in the Preamble of the NPRM, it is possible that reporting requirements for foreign banking organizations will change over time and the list of reports will need to be adjusted. The rule does not include specific reference to these reports to allow for the possibility of these changes. The Treasury will provide a list of reports used to calculate assessments to any assessed company, and will also maintain a list of reports used to calculate assessments on its Web site for reference in advance of the assessment period.

One comment letter requested that the definition of total assessable assets for foreign banking organizations be clarified to include U.S. branches and agencies in addition to subsidiaries. The definition of total assessable assets for foreign banking organizations in Section 150.2 has been modified to provide this clarity.

One comment letter requested that the rule provide clarity that total assessable assets for foreign banking organizations will be calculated as the average of the four most recent FR Y7-Q total assets at end of period for quarterly filers and the average of the two most recent annual FR Y7-Q total assets at end of period for annual filers. (This distinction was provided in the Preamble of the NPRM but not the text of the rule.) For reasons noted above, the Treasury has not included a list of reference reports in the final rule, but language was added to the rule clarifying that the average of four quarters of data will be used to calculate assessments for quarterly filers and the average of two years of annual data will be used to calculate assessments for annual filers.

One comment letter requested that the definition of “bank holding company” and “foreign banking organization” be clarified so that foreign banking organizations are limited to international banks that are subject to the Bank Holding Company Act of 1956 pursuant to Section 8(a) of the International Banking Act of 1978. The letter suggested modifying the definition of “bank holding company” to specify U.S.-domiciled bank holding companies and modify the definition of “foreign banking organization” to incorporate by reference the definition of that term in Section 211.21(o) of the Board's Regulation K. The letter also suggested revising paragraphs (1) and (2) of the definition of total assessable assets to reflect these revisions. The final rule clarifies these definitions accordingly.

One comment letter suggested that the final rule clarify that only total assets of combined U.S. operations of U.S. companies with foreign affiliates would be assessable. The Dodd-Frank Act is silent on this point. However, the Dodd-Frank Act requires that the Council and the OFR monitor the financial system and respond to threats to U.S. financial stability across the system. Mitigating current and potential future threats to financial stability provides particular benefits for companies that conduct a majority of their business in U.S. markets. Treasury also notes that a significant disruption to foreign operations could impact the parent company, and where the parent company is a U.S. entity, it may have consequences for U.S. financial stability. The rule consequently retains calculation of total assessable assets for U.S.-based companies based on global total consolidated assets.

The two letters from individuals expressed general support for the rule. One comment letter expressed support for assessing financial institutions to fund the Office. One comment letter expressed support for the permanent self-funding provisions reflected in the rule and the mission of the Office.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., requires agencies to prepare an initial regulatory flexibility analysis (IRFA) to determine the economic impact of the rule on small entities. Section 605(b) allows an agency to prepare a certification in lieu of an IRFA if the rule will not have a significant economic impact on a substantial number of small entities. Pursuant to 5 U.S.C. 605(b), it is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. The size standard for determining whether a bank holding company or a nonbank financial company is small is $7 million in average annual receipts. Under Section 155 of the Dodd-Frank Act, only bank holding companies with more than $50 billion in total consolidated assets or nonbank financial companies regulated by the Federal Reserve will be subject to assessment. As such, this rule will not apply to small entities and a regulatory flexibility analysis is not required.

On a one-time basis, assessed entities would be required to set up a bank account for fund transfers and provide the required information to the Treasury Department on a form. The form includes bank account routing information and contact information for the individuals at the company that will be responsible for setting up the account and ensuring that funds are available on the billing date. The Treasury Department estimates that approximately 50 companies  14 may be affected, and that completing and submitting the form would take approximately fifteen minutes. The aggregate paper work burden is estimated at 12.5 hours.

On a semi-annual basis, assessed companies will have the opportunity to review the confirmation statement and assessment bill. The rules do not require the companies to conduct the review, but it does permit it. We anticipate that at least some of the companies will conduct reviews, in part because the cost associated with it is very low.

The collection of information contained in this rule has been approved by the Office of Management and Budget (OMB) under the requirements of the Paperwork Reduction Act, 44 U.S.C. 3507(d) and assigned control number 1505-0245. An agency may not conduct or sponsor an a person is not required to respond to a collection of information unless it displays a valid OMB control number.

The information collections are included in § 150.6.

It has been determined that this regulation is a significant regulatory action as defined in Executive Order 12866 as supplemented by Executive Order 13563, in that this rule would have an annual effect on the economy of $100 million or more. Accordingly, this rule has been reviewed by the Office of Management and Budget. The Regulatory Impact Assessment prepared by Treasury for this regulation is provided below.

Section 155 of the Dodd-Frank Act directs the Board to provide funding sufficient to cover the expenses of the OFR and FSOC during the two-year period following enactment. (The Dodd-Frank Act was enacted on July 21, 2010.) To provide funding after July 21, 2012, Section 155(d) of the Dodd-Frank Act directs the Secretary of the Treasury to establish by regulation, and with the approval of the FSOC, an assessment schedule for bank holding companies with total consolidated assets of $50 billion or greater and nonbank financial companies supervised by the Board.

Section 155(d) of the Dodd-Frank Act defines the population of assessed companies as bank holding companies with total consolidated assets of $50 billion or greater and nonbank financial companies supervised by the Board.

Under this definition, U.S bank holding companies and foreign banking organizations with $50 billion or more in total worldwide consolidated assets and nonbank financial companies supervised by the Board qualify for assessment. However, under the rule only U.S.-based assets of foreign banking organizations would be used to calculate their assessments. Foreign banking organizations with less than $50 billion in U.S.-based assets would not be assessed. Based on information provided by the Board, we estimate that forty-eight bank holding companies qualified as assessed companies as of June 30, 2011.

Nonbank financial companies determined by the FSOC to require heightened supervision under Title I would be assessed on the basis of their total consolidated assets for U.S. entities and on the basis of total consolidated assets of U.S. operations for foreign entities, similar to bank holding companies. All such nonbank financial companies would be assessed, regardless of their level of total consolidated assets. 15

The Dodd-Frank Act established the FSOC and the OFR, and vested the FDIC with orderly liquidation authorities. Prior to passage of the Act, these entities and authorities did not exist. Expenses associated with these activities are directed by the Dodd-Frank Act to be funded by the Board for a two-year period to end on July 21, 2012. After July 21, 2012, the Dodd-Frank Act requires the Secretary of the Treasury establish an assessment schedule by regulation, with approval by the Council, to collect funds necessary to cover these expenses. There is no provision in the Dodd-Frank Act for the FSOC or the OFR to receive appropriated funds. Section 152(e) of the Dodd-Frank Act allows departments or agencies of government to provide funds, facilities, staff, and other support services to the OFR as the OFR may determine advisable. Section 152(e) and Section 111(j) allow for employees of the Federal Government to be detailed to the OFR and the FSOC, respectively, without reimbursement. Funding through departments or agencies of government would not be sufficient to perform all of the functions of the FSOC, the OFR, and the FDIC required by the Act. Agencies funded by appropriations would be restricted in the amount of funding support they could provide to the FSOC or the OFR. Agencies not funded by appropriations would be restricted in the amount of funding support they could provide for activities outside their primary mandate. Restrictions on the availability of funds or lack of predictability of funding would make it difficult to maintain consistent program activities, and complete analysis required to identify possible threats to financial stability. The implementation of this rule is not expected to have a discernible effect on the structure of the financial sector.

It is anticipated that the annual assessments for the FRF will exceed $100 million, making the rule a significant regulatory action as defined in Executive Order 12866.

The assessment and collection of fees described in this rule represent an economic transfer from assessed companies to the government, for purposes of providing the benefits described above. As such, the assessments do not represent an economic cost for purposes of this analysis. However, the allocation of the assessment may have distributional impacts.

There is a wide range of possible assessment schedules which could be used to collect funds for the OFR and the FSOC. For example, the schedule could be structured to charge eligible companies a similar fee, it could include tiered fees and rates, or it could include assessments for all eligible companies as opposed to just entities with $50 billion in U.S.-based assets (i.e., including foreign banking organizations with more than $50 billion in worldwide assets but less than $50 billion in U.S.-based assets). Having a simple, more transparent assessment schedule reduces costs for government and for assessed companies by making assessments easier to calculate, budget for, and manage administratively. Executive Order 12866 specifically requires that agencies “design its regulations in the most cost-effective manner to achieve the regulatory objective.”

The selection of the assessment schedule was governed by two guiding principles:

• The assessment structure should be simple and transparent; and

• Allocation should take into account differences among such companies, based on the considerations for establishing the prudential standards under section 115 of the Dodd-Frank Act as required by the Act.

Under Section 155 of the Act, the assessment schedule is required to take into account criteria for establishing prudential standards for supervision and regulation of large bank holding companies and nonbank financial companies as described in Section 115 of the Act. The criteria in Section 115 include: “Capital structure, riskiness, complexity, financial activities (including the financial activities of subsidiaries), size, and any other risk-related factors that the Council deems appropriate.” Selection of total consolidated assets as the basis for assessments was intended to take into account the criteria identified in Section 115, while providing a more transparent and administratively cost effective metric. Using other risk-related metrics as a base for calculation could dramatically increase the cost of calculating assessments, as well as reduce a company's ability to project their assessment level. As of June 30, 2011, companies meeting the criteria for assessment had $18.7 trillion in total consolidated assets.

Under the assessment structure, each assessed company's eligible assets would be multiplied by an assessment fee rate to determine their assessment amount. (Eligible assets would be total worldwide consolidated assets for U.S.-based bank holding companies and designated U.S.-based nonbank financial companies, and total U.S.-based assets for foreign banking organizations and foreign designated nonbank financial companies.) Assessments would be made semiannually, generally based on an average of the company's last four quarters of total consolidated assets.

For example, based on data on assessable assets as of June 30, 2011, for every $100 million collected the range of assessments would be $280,000 for the smallest assessed company (with just over $50 billion in assets) to $12.5 million for the largest assessed company (with approximately $2.3 trillion in assets). 16 Assessments on the ten largest assessed companies would provide roughly two-thirds of the total assessed amount.

Based on currently available data, no assessed company will have less than $50 billion in assets; thus no small businesses are directly affected by the regulation. Under the structure of the rule, the only assessed companies that could have less than $50 billion in assets would be nonbank financial companies subject to enhanced prudential supervision by the Board. While no such determinations have yet been made, Treasury believes that the FSOC will not make such a determination for any nonbank financial company that is a small business. It is not anticipated that the regulation will unduly interfere with state, local, and tribal governments in the exercise of their governmental functions.

We estimate that there are certain direct costs associated with complying with these rules. On a one-time basis, assessed entities would be required to set up a bank account for fund transfers and provide the required information to the Treasury Department through an information collection form. The information collection form includes bank account routing information and contact information for the individuals at the company that will be responsible for setting up the account and ensuring that funds are available on the billing date. We estimate that approximately 50 companies could be affected, and that the cost associated with filling out the form and submitting it to the Treasury Department is approximately $600. 17 We note that this represents a conservative estimate of costs as some of these companies may have already established an account for payments or collections to the U.S. government.

On a semi-annual basis, assessed companies will have the opportunity to review the confirmation statement and assessment bill. The rules do not require the companies to conduct the review, but it does permit it. We anticipate that at least some of the companies will conduct reviews, in part because the cost associated with it is very low.

We have noted that there are many possible assessment structures which could be employed to collect assessments. As part of the rulemaking process, Treasury contemplated a variety of structures for determining how assessments would be allocated. Particularly, Treasury considered alternate approaches with regard to the complexity of the method of assessment. In addition, Treasury considered alternative approaches with the following features: (1) Approaches designed to charge assessed companies at a similar fee level, distributing collections more evenly; (2) approaches designed to charge different rates for different levels of total consolidated assets, creating a “tiered” structure of rates; and (3) approaches designed to charge eligible bank holding companies and foreign banking organizations against world-wide assets, as opposed to charging foreign banking organizations against U.S.-based assets. We discuss these alternative approaches below.

In evaluating methodologies for determining individual company assessments, the Treasury notes that there has been a variety of assessment approaches employed by other federal and international agencies which incorporate measures of risk that are similar to the considerations mentioned in Section 115 of the Dodd-Frank Act. For example, Basel III capital adequacy standards set minimum capital requirements based on risk-weighted assets and also provide a mandatory capital conservation buffer and a discretionary countercyclical buffer. The risk-based calculations incorporate capital tiers, leverage, credit valuation adjustments, and other factors. As required by the Dodd-Frank Act, the FDIC recently revised how banks are charged deposit insurance assessments. With some minor exceptions, the FDIC assessment base is total consolidated assets minus tangible equity.

In the U.S., the FDIC uses the CAMELS system to assign risk ranking to its regulated banks. As suggested by commenters, the Treasury considered using CAMELS as a classification system for assigning relative assessments, but deemed the approach inappropriate as the methodology used to produce CAMELS ratings is non-public, the ratings are confidential supervisory information, and the rating system was developed to apply to U.S. depository institutions. The system also provides broad rankings (ranging from one to five) which would require subjective translation into assessment levels.

In each of these cases, and in other related determinations, the complexity of the assessment methodology is tied to the goal of the charge. For instance, the Dodd-Frank Act requires the Board to collect assessments designed to cover the costs of heightened regulation and supervision of large bank holding companies, large savings and loan holding companies, and nonbank financial companies supervised by the Board.

In evaluating these arrangements, Treasury notes that complexity in the assessment design increases the administrative burden to assessed companies, including planning for those assessments, and decreases transparency to the public. Treasury does not believe that the benefits of a complex methodology justify their increased costs in the context of this rulemaking.

Section 155 of the Dodd-Frank Act requires that the assessment schedule take into account criteria for establishing prudential standards for supervision and regulation of large bank holding companies and nonbank financial companies as described in Section 115 of the Act. The criteria in Section 115 include: “capital structure, riskiness, complexity, financial activities (including the financial activities of subsidiaries), size, and any other risk-related factors that the Council deems appropriate.” The option of charging companies at a similar level was rejected as it would appear to contradict the intent of the Act for the schedule to charge larger, more complex and riskier firms higher fees. On the basis of size alone, we estimate that the largest eligible companies have over 40 times the assessable assets of smallest companies.

A number of regulators rely on tiered assessment schedules to collect fees. The Office of the Comptroller of the Currency uses a tiered assessment structure to collect fees associated with regulating and supervising national banks. The Office of Thrift Supervision used a tiered structure to collect fees to regulate and supervise thrifts. The main benefit of a tiered structure is that it allows fees to be charged at different rates to different companies. For example, supervision may benefit from economies of scale, meaning that the additional resources required for supervision do not grow dollar for dollar with the size of the entity. Alternatively, larger companies may pose risks that are disproportionately larger than their asset size, requiring even more resources for supervision than do smaller companies. A tiered approach could accommodate such differences by allowing different fee rates to be charges against assessed assets by tier.

Consideration was given to establishing such a structure for FRF assessments. The primary benefit would have been greater flexibility in determining the relative amounts assessed on larger companies versus smaller companies. However, these benefits were balanced against an interest for assessment fees to be reasonably estimable and simpler to calculate, reducing administrative costs both for assessed companies and the Treasury, improving transparency, and allowing companies to better anticipate assessment amounts. Given that all assessed companies are large (generally with over $50 billion in assets) and systemically important, and the activities of the FSOC, the OFR, and implementation expenses of the FDIC correspond to all of them, the relative benefits of a tiered structure over a fixed rate structure were unclear.

Based on the definition of “bank holding company” in Title I of the Dodd-Frank Act, assessments can be made against any foreign banking organizations with $50 billion or more in total consolidated assets. Since many of these eligible foreign banking companies have a relatively small percentage of their operations in the United States, there is limited basis for assessing these companies. Consideration was given to charging a small fee, so that all eligible companies would be charged, but the additional costs associated with administering the fee and cost of compliance by these companies outweighed the perceived benefits of this choice. The final determination was to charge foreign banking organizations with $50 billion or more in total U.S.-based assets and U.S. based bank holding companies with $50 billion or more in total consolidated assets.

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, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is a “major rule” as defined by 5 U.S.C. 804(2) and will be effective 60 days after publication.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a state, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Treasury believes that the regulatory impact analysis provides the analysis required by the Unfunded Mandates Reform Act.

The Administrative Procedure Act (5 U.S.C. 551 et seq. ) (APA) generally requires public notice and comment procedures before promulgation of regulations. See 5 U.S.C. 553(b). The Treasury published a notice of proposed rulemaking requesting comment on the proposed rule on January 3, 2012. The Treasury is finalizing the rule as it relates to bank holding companies without an opportunity for additional comment.

The comments that relate to nonbank financial companies have been considered but have not been fully addressed in this interim rule because the Department believes the rulemaking would benefit from additional public comment prior to establishing it as a final rule.

The Department believes, however, that good cause exists under 5 U.S.C. 553(b) to effectuate the rule as it relates to nonbank financial companies on an interim basis. As discussed in this preamble, nonbank financial companies supervised by the Board pursuant to section 113 of the Dodd-Frank Act are subject to assessments. To date, no nonbank financial company has been subject to the section 113 supervision. Once designated by the Council and subject to Board supervision, a nonbank financial company will also be subject to assessments under the Dodd-Frank Act. In order to be consistent with the requirements of section 155 of the Act in assessing designated nonbank financial companies, the Treasury finds that it would be impracticable and contrary to the public interest to delay implementation of the rule pending further public comment. To implement the rule only as it relates to bank holding companies would impose an increased burden on bank holding companies and prevent the collection from designated nonbank financial companies of the assessments required to be imposed by statute. Accordingly, the Treasury is effectuating the rule as it relates to nonbank financial companies, but also invites public comment on portions of §§ 150.2, 150.3, 150.4, 150.5, and 150.6 as they relate to nonbank financial companies.

For the reasons set forth in the preamble, the Treasury amends Title 31, Chapter I of the Code of Federal Regulations by adding part 150 to read as follows:

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of comments received into any of our 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 a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES . Please explain why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register . For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact Mr. Eric Washburn at the telephone number or email address indicated under the FOR FURTHER INFORMATION CONTACT section of this notice.

On November 14, 2011, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulation; Black River, La Crosse, Wisconsin, in Federal Register (76 FR 70384). We received no comment letters on the rule. On November 29, 2011, we held a public meeting, at which no objections were presented against the rule. Although no comments were received, it has been determined to be in the interest of local recreational boating public to enact this test deviation and gauge its effects on waterway users during the peak navigation season. If no comments are received during this deviation period, it is anticipated a permanent rule change will be enacted.

The Canadian Pacific Railroad Drawbridge crosses the Black River at Mile 1.0 near La Crosse, Wisconsin. Its drawspan provides 15 feet of vertical clearance in the closed-to-navigation position and 49 feet of vertical clearance in the open-to-navigation position.

The bridge currently operates under 33 CFR 117.1081; opening on demand following a two-hour advance notification. This bridge has operated under the current regulation since 2002.

As explained and proposed in the NPRM, in order to reduce wait time for requested drawbridge openings while also reducing operating costs, Canadian Pacific requested this drawbridge be operated where vessels contact a remote drawbridge operator via VHF-FM Channel 16 or telephone (507) 895-6087. Mariners establish radio or telephone communications and request an opening. The remote operator ensures no trains are in the block and then opens the drawspan. Once opened to navigation it remains raised until the remote operator verifies safe vessel passage. This verification is conducted by radio or telephone confirmation with the passing vessel, video monitoring, and boat detection equipment.

The temporary deviation period will start 12:01 a.m. on June 15, 2012 through 11:59 p.m. on July 15, 2012. During this time the drawspan will be opened on demand by a remote operator.

This temporary deviation has been coordinated with waterway users. No objections were received. There are no alternate routes for vessels transiting this section of the Black River.

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

Trimet of Portland and the Oregon Department of Transportation have requested that the upper deck of the Steel Bridge remain closed to vessel traffic to facilitate safe efficient movement of light rail and roadway traffic associated with the Rose Parade. The Steel Bridge crosses the Willamette River at mile 12.1 and is a double-deck lift bridge with a lower lift deck and an upper lift deck which operate independent of each other. When both decks are in the down position the bridge provides 26 feet of vertical clearance above Columbia River Datum 0.0. When the lower deck is in the up position the bridge provides 71 feet of vertical clearance above Columbia River Datum 0.0. This deviation does not affect the operating schedule of the lower deck which opens on signal. Vessels which do not require an opening of the upper deck of the bridge may continue to transit beneath the bridge and, if needed, may obtain an opening of the lower deck of the bridge for passage during this closure period of the upper deck. Under normal conditions the upper deck of the Steel Bridge operates in accordance with 33 CFR 117.897(c)(3)(ii) which states that from 8 a.m. to 5 p.m. Monday through Friday one hour advance notice shall be given for draw openings and at all other times two hours advance notice shall be given to obtain an opening. This deviation period is from 7 a.m. on June 9, 2012 through 1 p.m. June 9, 2012. The deviation allows the upper deck of the Steel Bridge across the Willamette River, mile 12.1, to remain in the closed position and need not open for maritime traffic from 7 a.m. through 1 p.m. on June 9, 2012. The bridge shall operate in accordance to 33 CFR 117.897 at all other times. Waterway usage on this stretch of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft. Mariners will be notified and kept informed of the bridge's operational status via the Coast Guard Notice to Mariners publication and Broadcast Notice to Mariners as appropriate. The lift span will be required to open, if needed, for public vessels of the United States and Canada and for vessels engaged in emergency response operations during this closure period.

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

Trimet of Portland and the Oregon Department of Transportation have requested that the upper deck of the Steel Bridge remain closed to vessel traffic to facilitate safe efficient movement of light rail and roadway traffic associated with the Starlight Parade. The Steel Bridge crosses the Willamette River at mile 12.1 and is a double-deck lift bridge with a lower lift deck and an upper lift deck which operate independent of each other. When both decks are in the down position the bridge provides 26 feet of vertical clearance above Columbia River Datum 0.0. When the lower deck is in the up position the bridge provides 71 feet of vertical clearance above Columbia River Datum 0.0. This deviation does not affect the operating schedule of the lower deck which opens on signal. Vessels which do not require an opening of the upper deck of the bridge may continue to transit beneath the bridge and, if needed, may obtain an opening of the lower deck of the bridge for passage during this closure period of the upper deck. Under normal conditions the upper deck of the Steel Bridge operates in accordance with 33 CFR 117.897(c)(3)(ii) which states that from 8 a.m. to 5 p.m. Monday through Friday one hour advance notice shall be given for draw openings and at all other times two hours advance notice shall be given to obtain an opening. This deviation period is from 7 p.m. on June 2, 2012 through 11:30 p.m. June 2, 2012. The deviation allows the upper deck of the Steel Bridge across the Willamette River, mile 12.1, to remain in the closed position and need not open for maritime traffic from 7 p.m. through 11:30 p.m. on June 2, 2012. The bridge shall operate in accordance with 33 CFR 117.897 at all other times. Waterway usage on this stretch of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft. Mariners will be notified and kept informed of the bridge's operational status via the Coast Guard Notice to Mariners publication and Broadcast Notice to Mariners as appropriate. The lift span will be required to open, if needed, for public vessels of the United States and Canada and for vessels engaged in emergency response operations during this closure period.

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

The Coast Guard will enforce the safety zones listed in 33 CFR 165.941, Safety Zones; Annual Fireworks Events in the Captain of the Port Detroit Zone, at the following times for the following events:

(1) Put-In-Bay Fourth of July Fireworks, Put-In-Bay, OH. The safety zone listed in 33 CFR 165.941(a)(6) will be enforced between from 9:30 p.m. until 11:00 p.m. on July 4, 2012. In case of inclement weather on July 4, 2012, this safety zone will be enforced from 9:30 p.m. until 11:00 p.m. on July 5, 2012.

(2) Toledo Country Club Memorial Celebration and Fireworks, Toledo, OH. The safety zone listed in 33 CFR 165.941(a)(16) will be enforced from 9:45 p.m. until 10:30 p.m. on May 25, 2012.

(3) Luna Pier Fireworks Show, Luna Pier, MI. The safety zone listed in 33 CFR 165.941(a)(17) will be enforced from 9:30 p.m. to 10:30 p.m. on July 7, 2012.

(4) Toledo Country Club 4th of July Fireworks, Toledo, OH. The safety zone listed in 33 CFR 165.941(a)(18) will be enforced from 9:45 p.m. to 10:30 p.m. on June 29, 2012.

(5) Perrysburg/Maumee 4th of July Fireworks, Perrysburg, OH. The safety zone listed in 33 CFR 165.941(a)(20) will be enforced from 10:00 p.m. to 10:30 p.m. on July 3, 2012.

(6) Lakeside July 4th Fireworks, Lakeside, OH. The safety zone listed in 33 CFR 165.941(a)(21) will be enforced from 9:30 p.m. to 11:30 p.m. on July 4, 2012.

(7) Catawba Island Club Fireworks, Catawba Island, OH. The safety zone listed in 33 CFR 165.941(a)(22) will be enforced from 9:15 p.m. to 9:45 p.m. on July 3, 2012.

(8) Red, White and Blues Bang Fireworks, Huron, OH. The safety zone listed in 33 CFR 165.941(a)(23) will be enforced from 10:00 p.m. to 11:00 p.m. on July 7, 2012.

(9) Huron Riverfest Fireworks, Huron, OH. The safety zone listed in 33 CFR 165.941(a)(24) will be enforced from 10:00 p.m. to 11:00 p.m. on July 13, 2012.

(10) Lakeside Labor Day Fireworks, Lakeside OH. The safety zone listed in 33 CFR 165.941(a)(28) will be enforced from 9:15 p.m. to 11:15 p.m. on September 2, 2012.

(11) Catawba Island Club Fireworks, Catawba Island, OH. The safety zone listed in 33 CFR 165.941(a)(29) will be enforced from 9:15 p.m. to 9:45 p.m. on September 2, 2012.

(12) Red, White, Kaboom Lights Up The Night Fireworks, Toledo, OH. The safety zone listed in 33 CFR 165.941(a)(55) will be enforced from 10:00 p.m. to 10:30 p.m. on July 4, 2012.

Under the provisions of 33 CFR 165.23, entry into, transiting, or anchoring within these safety zones during an enforcement period is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. Vessels that wish to transit through the safety zones may request permission from the Captain of the Port Detroit. Requests must be made in advance and approved by the Captain of Port before transits will be authorized. Approvals will be granted on a case by case basis. The Captain of the Port may be contacted via U.S. Coast Guard Sector Detroit on channel 16, VHF-FM. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

This notice is issued under authority of 33 CFR 165.23 and 5 U.S.C. 552(a). If the Captain of the Port determines that the enforcement of these safety zones need not occur as stated in this notice, he or she might suspend such enforcement and notify the public of the suspension via a Broadcast Notice to Mariners.

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive information regarding the exercise until April 11, 2012. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to the exercise. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the public during the exercise.

For the same reason discussed above, under 5 U.S.C. 553(d)(3) the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The purpose of the rule is to protect the public from the hazards associated with the airborne and waterborne activities during the exercise.

On Tuesday, May 22, 2012 and Wednesday, May 23, 2012, the International Special Operations Forces Week Capability Exercise is scheduled to take place on the waters of Seddon Channel, in the vicinity of the Tampa Convention Center in Tampa, Florida. The exercise will consist of multiple airborne and waterborne activities including: Persons fast-roping and jumping out of helicopters, high-speed boat pursuits, amphibious vehicles operations, and blank ammunition use. The exercise is scheduled to take place from 1 p.m. until 3 p.m. on May 22, 2012, and from 1 p.m. until 2 p.m. on May 23, 2012.

The temporary safety zone encompasses certain waters of Seddon Channel in the vicinity of the Tampa Convention Center in Tampa, Florida. The safety zone will be enforced from 12:30 p.m. until 3:30 p.m. on May 22, 2012, and from 12:30 p.m. until 2:30 p.m. on May 23, 2012. Enforcement of the safety zone will begin 30 minutes prior to the scheduled commencement of the exercise each day at approximately 12:30 p.m., and end 30 minutes after the scheduled completion of the exercise at approximately 3:30 p.m. on May 22, 2012 and 2:30 p.m. on May 23, 2012 to ensure the safety zone is clear of persons and vessels.

Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port St. Petersburg or a designated representative. Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the Captain of the Port St. Petersburg by telephone at (727) 824-7524, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the Captain of the Port St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port St. Petersburg or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

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

Executive Orders 13563, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation under Executive Order 12866.

The economic impact of this rule is not significant for the following reasons: (1) The safety zone will be enforced for only five hours; (2) vessel traffic in the area will be minimal during the enforcement periods; (3) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement periods; (4) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Port St. Petersburg or a designated representative; and (5) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Seddon Channel in Tampa, Florida, encompassed within the safety zone from 12:30 p.m. until 3:30 p.m. on May 22, 2012, and from 12:30 p.m. until 2:30 p.m. on May 23, 2012. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

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

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

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

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

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

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because waiting for a notice and comment period to run would be impracticable. The final details for this year's event were not received by the Coast Guard with sufficient time to run a comment period before the start of this year's event. Thus, delaying the effectiveness of this rule to await the running of a comment period would inhibit the Coast Guard's ability to protect the public from the hazards associated with maritime fireworks displays.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable for the same reasons discussed in the preceding paragraph.

On June 29, 2012, fireworks will be launched from a point on land near the Marysville Municipal Park, adjacent to the St. Clair River, to commemorate Marysville Day. The fireworks display will occur between 10:00 p.m. and 11:15 p.m., June 29, 2012. The Captain of the Port Detroit has determined that these fireworks will pose certain hazards to the boating public. Such hazards include obstructions to the waterway that may cause marine casualties, the explosive danger of fireworks, and debris falling into the water that may cause death, serious bodily harm, or property damage. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property in the vicinity of this event and help minimize the associated risks.

For the reasons discussed above, the Captain of the Port Detroit has determined that a temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching of the Marysville Days Fireworks Display. This safety zone is effective and will be enforced from 10:00 p.m. through 11:15 p.m. on June 29, 2012. The temporary safety zone will encompass all waters on St. Clair River within a 600 foot radius of the fireworks launch site located on land at position 42°54′25″ N, 082°27′58″ W. All geographic coordinates are North American Datum of 1983 (NAD 83).

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on scene representative. The Captain of the Port or his designated on scene representative may be contacted via VHF Channel 16.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone around the launch platform will be relatively small and exist for only a minimal time. Thus, restrictions on vessel movement within any particular area of the St. Clair River are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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

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

This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in this portion of St. Clair River between 10:00 p.m. through 11:15 p.m. on June 29, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities for the same reasons discussed in the above Regulatory Planning and Review section.

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

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

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

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

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

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

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

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

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

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

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

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

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows:

Throughout this document wherever “we”, “us” or “our” are used, we mean EPA. Information is organized as follows:

On July 18, 1997, EPA promulgated a new NAAQS for ozone. EPA revised the ozone NAAQS to provide an 8-hour averaging period which replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). The CAA requires SIPs meeting the requirements of sections 110(a)(1) and (2) be submitted by states within 3 years after promulgation of a new or revised standard. Sections 110(a)(1) and (2) require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards, so-called “infrastructure” requirements. To help states meet this statutory requirement for the 1997 8-hour ozone NAAQS, EPA issued guidance to address infrastructure SIP elements under section 110(a)(1) and (2). 1 In the case of the 1997 8-hour ozone NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous ozone standards. The State of Oregon submitted a certification to EPA on September 25, 2008, certifying that Oregon's SIP meets the infrastructure obligations for the 1997 8-hour ozone NAAQS. The certification included an analysis of Oregon's SIP as it relates to each section of the infrastructure requirements with regard to the 1997 8-hour ozone NAAQS. On February 7, 2012, EPA published a notice of proposed rulemaking (NPR) for the State of Oregon (77 FR 6044) to act on the state's infrastructure SIP for the 1997 ozone NAAQS. Specifically in the NPR, EPA proposed approval of Oregon's SIP as meeting the requirements for the following 110(a)(2) infrastructure elements for the 1997 8-hour ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). As discussed in the NPR, this action does not address 110(a)(2)(D)(i) and 110(a)(2)(I). The public comment period for EPA's NPR closed on March 8, 2012. EPA received no comments on the proposed action.

Oregon has not demonstrated authority to implement and enforce the Oregon Administrative Rules within “Indian Country” as defined in 18 U.S.C. 1151. 2 Therefore, this SIP approval does not extend to “Indian Country” in Oregon. See CAA sections 110(a)(2)(A) (SIP shall include enforceable emission limits), 110(a)(2)(E)(i) (State must have adequate authority under State law to carry out SIP), and 172(c)(6) (nonattainment SIPs shall include enforceable emission limits). This is consistent with EPA's previous approval of Oregon's PSD program, in which EPA specifically disapproved the program for sources within Indian Reservations in Oregon because the State had not shown it had authority to regulate such sources. See 40 CFR 52.1987(c). It is also consistent with EPA's approval of Oregon's title V operating permits program. See 59 FR 61820, 61827 (December 2, 1994) (interim approval does not extend to Indian Country); 60 FR 50106, 50106 (September 28, 1995) (full approval does not extend to Indian Country).

EPA is approving the September 25, 2008, SIP submittal from the State of Oregon to demonstrate that the SIP meets the requirements of section 110(a)(1) and (2) of the CAA for the NAAQS promulgated for ozone on July 18, 1997. EPA is approving the following section 110(a)(2) infrastructure elements for Oregon for the 1997 ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), (M). EPA is taking no action on infrastructure elements (D)(i) and (I) for the 1997 ozone NAAQS. This action is being taken under section 110 of the CAA.

Under the Clean Air Act, 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 Clean Air Act. 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 Clean Air Act; 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 20, 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. 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:

On September 2, 2010, we proposed modifying the TED requirements, and solicited public comments on allowable TED modifications and additional certified TED designs (75 FR 53925). A detailed description of the alternative construction materials and TED designs is provided in the proposed rule and is not repeated here.

In response to our request for public comments, we received written comments from four commenters.

Comment 1: The Boone Wedge Cut escape opening did not pass the small turtle testing protocol when used in a bottom-opening configuration. Therefore, it should not be certified for use as a bottom-opening TED.

Response: During the June 2008 small turtle TED testing, the Boone Big Boy TED was tested in a bottom-opening configuration. Sinkey Boone installed this TED at an angle of 54 degrees, and included the Boone Wedge Cut escape opening. We used a 32-inch by 44-inch bent-bar TED installed at 53 degrees with a double cover flap as the control TED in both a top- and bottom-opening configuration to test the configuration. In a sample size of 25 turtles each, the top-opening control TED captured 0 turtles while the bottom-opening control TED captured 1 turtle. A turtle is considered captured if it fails to escape through the TED within 5 minutes.

Based on the performance of the control TED to be considered a viable alternative any candidate TED in a top-opening configuration must capture no more than 1 turtle, while a candidate TED in a bottom-opening configuration must capture no more than 3 turtles, based on the statistical protocol of the “small turtle test” (55 FR 41092, October 9, 1990). The test results for the bottom-opening Boone Big Boy TED at 54 degrees with the Boone Wedge Cut escape opening were 24 escapes and 1 capture with a mean escape time of 44.3 seconds. Accordingly, the bottom-opening Boone Big Boy TED passes the statistical protocol for the small turtle test.

Comment 2: The Boone Wedge Cut escape opening was not tested at the maximum proposed angle of 55 degrees in a top-opening configuration. Previous testing has shown that changes in a few degrees of TED angle at 45 degrees with a straight-bar grid can have significant effects on sea turtle mortality. The Boone Wedge Cut escape opening in the top-opening configuration should not be certified above 50 degrees until further testing is conducted. Additionally, the Boone Big Boy TED and Boone Wedge Cut escape opening should be retested using maximum allowable TED angles and should not be considered for certification unless they pass small turtle testing protocol for both top- and bottom-opening configurations.

Response: The Boone Wedge Cut escape opening was first evaluated in Panama City in June 2002. The Boone Wedge Cut escape opening consists of installing a webbing wedge in the TED extension as an alternative to removing the extension webbing for the TED escape opening. The Boone Wedge Cut escape opening modification was tested under the leatherback sea turtle model test using a 32-inch bent-bar TED and failed. The Boone Wedge Cut escape opening was not evaluated with the small turtle test at that time.

In 2003, the Boone Wedge Cut escape opening was submitted for small turtle testing as an alternate method of achieving the required minimum 71-inch escape opening. The Boone Wedge Cut escape opening was installed into a bottom-opening, straight-bar grid with 2-inch bar spacing installed at an angle of 55 degrees. As a control, we used a TED with a top-opening 32-inch by 44-inch bent-bar. In a sample size of 25 turtles, the bottom-opening control TED captured 0 turtles. Based on the performance of the control TED, a candidate TED could capture no more than 1 turtle to pass, based on the statistical protocol of the “small turtle test” (55 FR 41092, October 9, 1990). The Boone Wedge Cut escape opening captured 2 turtles by interactions with chafing rope near the escape opening during testing, and so failed the small turtle test.

In 2004, the Boone Wedge Cut escape opening was tested with a Boone Big Boy TED installed at 53-degrees in a top-opening configuration. The frame was wrapped with 0.25-inch polypropylene rope as chafing gear. Prior evaluations of this style TED (i.e., 2003 testing) demonstrated that straight-bar TEDs in a bottom-opening configuration with 0.50-inch rope chafing gear present a problem for turtle exclusion, as turtles can get hung up on this rope. We used a 32-inch by 44-inch bent-bar TED installed at 53 degrees with a double cover flap as the control TED. In a sample size of 25 turtles, the top-opening control TED captured 2 turtles. Based on the performance of the control TED, a candidate TED must capture no more than 4 turtles to pass the “small turtle test” (55 FR 41092, October 9, 1990). The Boone Wedge Cut escape opening and frame wrapped with 0.25-inch polypropylene rope captured 0 turtles, and therefore passes the statistical protocol for the small turtle test.

In summary, the Boone Wedge Cut escape opening passed the small turtle testing protocol at 53 degrees in a top-opening configuration and at 54 degrees in a bottom-opening configuration. Previous testing and rulemaking established 55 degrees as the maximum allowable TED installation angle, as the likelihood of turtle entrapment does begin to increase greatly at angles steeper than that threshold. The testing of the Boone Wedge Cut escape opening and frame wrapped with 0.25-inch polypropylene rope demonstrates that it may be approved in both top- and bottom-opening configurations at TED angles up to the maximum allowable angle for hard TEDs.

Comment 3: The original Parker TED design did not pass the small turtle testing protocol due to serious design flaws; sea turtles were entangled and captured in the large mesh ramp designed to deflect turtles to the escape opening. The large mesh ramp may potentially entangle and drown turtles, particularly when the net has been stretched from daily use. All certification testing was conducted with new nets that were not in daily use. The Parker TED should be re-evaluated with the small turtle testing protocol, remote cameras, and nets that have been well-used by fishermen.

Response: Soft TEDs have been evaluated using the small turtle testing protocol since 1988. After many trials throughout the years, we developed a successful TED, called the “Parker” TED, which used a 22-mesh panel installed with 8-inch mesh in the body and 4-inch mesh in the wings, with the 4-inch mesh extending all the way to the apex (escape opening). During small turtle testing protocol testing in 1997, this Parker TED design worked well and did not exhibit any pocketing that would allow a turtle to become trapped. In a sample size of 25 turtles, this Parker TED design captured 0 turtles.

Since that testing, we have learned much about the proper technique of installing a soft panel in a trawl to prevent small turtles from becoming trapped. Extensive testing has demonstrated that the correct taper and correct mesh size are essential components for an effective soft TED. As with hard TEDs, the soft TED must be maintained to assure effectiveness and compliance with TED regulations, and mesh stretching is not unique to the soft TED. It is possible that large mesh stretches in the soft TED panel over time, and fishermen using this TED need to check mesh sizes in these panels to ensure that meshes have not become stretched beyond the allowable specifications. For these reasons, we disagree that the Parker TED needs to be re-evaluated.

Comment 4: The Boone Big Boy TED submitted to NMFS for testing was constructed of steel rod with a minimum outside diameter of 1/2 inch for the frame and with 4-inch bar spacing; however, the Boone Big Boy TED is typically constructed of steel rod with a minimum outside diameter of 3/8 inch for the frame and with 2-inch bar spacing. The Boone Big Boy TED should allow use of 3/8 -inch steel rod for construction of the TED frame.

Response: TED integrity is relevant to sea turtle exclusion or escapement, and we established minimum construction material requirements to maintain TED integrity and performance during fishing operations. Based upon many years of experience designing, testing and monitoring TEDs, NMFS' gear specialists with the Southeast Fisheries Science Center's Harvesting Systems and Engineering Branch have determined a 1/8 -inch difference in steel rod diameter will (or does) not negatively affect the structural integrity of the Boone Big Boy TED, nor does it adversely affect sea turtle exclusion. As an example, the minimum outside diameter for steel rod used in a standard single-grid hard TED (i.e., minimum horizontal and vertical measurement of 32 inches) is 1/4 inch. As the dimensions for a single-grid hard TED are minimums, one could legally construct, for example, a single-grid hard TED with horizontal and vertical measurements of 36.5 and 48 inches, respectively, with a 1/4 -inch steel rod frame, which would be the same as the dimensions of the Boone Big Boy TED. Single-grid hard TEDs with these dimensions have passed the small turtle test escapement protocols. Therefore, this final rule specifies a 3/8 -inch minimum outside diameter of steel rod for the Boone Big Boy TED, not the 1/2 -inch diameter originally included in the proposed rule.

Comment 5: Alternative management actions, such as the use of sea turtle grow-out facilities operated by the commercial fishing industry or electronic avoidance equipment, should be utilized instead of TEDs to reduce sea turtle interactions.

Response: While there may be alternative measures to reduce sea turtle bycatch in trawl fisheries, the submitted suggestions are beyond the scope of this action. At this time, NMFS cannot add or substitute actions to a rule that were not originally proposed. Nevertheless, NMFS appreciates the input and contribution from the public on the need and appropriateness of alternative options. NMFS continues to consider alternative measures, and if we determine such measures become appropriate, we will propose them in a future rulemaking.

Comment 6: Fishermen should be involved in TED development, and should be financially rewarded for innovation in reducing sea turtle interactions.

Response: NMFS agrees that fishermen should be involved in TED development. We note that the new materials and alternative designs included in this rule were tested, developed, and advocated by commercial fishermen. However, while we agree that fishermen should be (and are) involved in TED development, offering financial incentives or awards for TED development is beyond the scope of this action.

Based on the comments received, we have made one substantive change to the proposed rule. As noted above, the proposed rule stated the Boone Big Boy TED was to be constructed of steel rod with a minimum outside diameter of 1/2 inch. Based on further evaluation, however, we decided that steel rod with a minimum outside diameter of 3/8 inch was acceptable for use in the construction of the Boone Big Boy TED.

As a result of documented testing and evaluations, this rule authorizes: Using 1/4 inch (0.63 cm) thick and 1 1/2 inch (3.8 cm) deep flat bar, and rectangular and oval pipe meeting the current minimum dimensions cited at 50 CFR 223.207(a)(1) as construction materials in currently-approved TED grids; increasing maximum mesh size on escape flaps from 1 5/8 to 2 inches (4.1 to 5.1 cm); including the Boone Big Boy TED for use in the shrimp fisheries; using three large TED and Boone Wedge Cut escape openings; using the Chauvin Shrimp Deflector in a top-opening TED configuration to improve shrimp retention; using a horizontal brace bar on a TED to increase the strength of the grid and prevent flexing of the vertical deflector bars; and using the modified founder TED in the summer founder fishery. This rule also corrects an error regarding the maximum size chain that can be used on the Parker TED escape opening flap.

At the proposed rule stage for this action, the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. Therefore, a Final Regulatory Flexibility Analysis was not required. The factual basis leading to the certification is set forth below.

This rule would not impose any new requirements on fishing entities in the southeastern shrimp fisheries. An exact number of total fishing entities in the southeastern shrimp fisheries is unavailable, though approximately 5,000 vessels are estimated to be currently active. This rule simply allows fishermen, at their discretion, to use a alternative TEDs in their shrimp nets. NMFS expects fishermen will make these decisions only when they will result in improved fishing performance without a substantial increase in cost. As a result, any effects are expected to be positive and no adverse economic impacts are expected to accrue.

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

The Endangered Species Act provides the statutory basis for the rule.

For the reasons set out in the preamble, 50 CFR part 223 is amended as follows: