History

On November 28, 2011, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Restricted Areas R-5402, R-5403A, R-5403B, R-5403C, R-5403D, R-5403E, and R-5403F in the vicinity of Devils Lake, ND (76 FR 72869). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. In response to public request, the FAA extended the comment period for 30 additional days (77 FR 1656; January 11, 2012). There were 43 comments received in response to the NPRM with 42 opposing various aspects of the proposal and one comment supporting the proposal as published. All comments received were considered before making a determination on this final rule. The following is a discussion of the substantive comments received and the agency's response.

One commenter contended that the 500 feet above ground level (AGL) base for R-5402 would impact low level, aerial operations such as crop dusters, wildlife and agricultural surveys, and emergency medical access. The FAA recognizes that when active, R-5402 would restrict nonparticipating aircraft from operating within its boundaries. To mitigate impacts to the aviation activities described above, the United States Air Force (USAF) has agreed to implement scheduling coordination measures to de-conflict laser operations and accommodate access by local farming, ranching, survey, and medical aviation interests when they need to fly in or through R-5402, when it is active.

Another commenter noted that VFR traffic would have to circumnavigate active restricted airspace resulting in increased time and distances flown. The FAA acknowledges restricted area airspace segregates nonparticipating aircraft from hazardous activities occurring inside the restricted area and that, on occasion, nonparticipating aircraft affected by the restricted area will have to deviate from preferred routings to remain clear. The lateral boundaries and altitudes of the restricted area complex were defined to minimize impacts to nonparticipant aircraft, yet still support the military in accomplishing its training mission. The subdivided configuration of the restricted area complex, the altitude stratifications, and the entire restricted area complex designated as “joint use,” affords nonparticipant aircraft access to the portions of restricted area airspace not in use by the military to the greatest extent possible.

One commenter expressed concern that segregating airspace for new types of aircraft sets a dangerous precedent. The FAA agrees and maintains its policy to establish restricted area airspace when determined necessary to confine or segregate activities considered hazardous to nonparticipating aircraft. The FAA considers UAS operations to be non-hazardous. However, the FAA recognizes that some UAS platforms have the ability to employ hazardous ordnance or sensors. Since the MQ-1 Predator [UAS] laser is non-eye safe and will be used during training sorties flown by the military, its use constitutes a hazardous activity that must be confined within restricted area airspace to protect nonparticipating aircraft.

Two commenters suggested that Special Use Airspace (SUA) should be ceded back to civil control when not in use. The FAA proposed that the restricted areas be designated as “joint use” airspace, specifically to afford the highest level of access to NAS users and limit this access only when necessary. This rule provides that when the restricted areas are not needed by the using agency, the airspace will be returned to the controlling agency, Minneapolis Air Route Traffic Control Center, for access by other NAS users.

Another commenter recommended that the proposed restricted area airspace be developed for concurrent use. The FAA considered the commenters use of “concurrent use” to mean “sharing the same airspace, at the same time, between participating and nonparticipating aircraft.” As noted previously, restricted areas are established to confine or segregate activities considered hazardous to nonparticipating aircraft; such as dropping bombs, firing guns/missiles/rockets, or lasing with a non-eye safe laser. Concurrent use, as described above, would not be prudent in such an environment as it constitutes an unacceptable risk to nonparticipating aircraft.

Twenty-two commenters stated that the proposed restricted areas should have been developed in conjunction with the North Dakota Airspace Integration Team (NDAIT), a group formed to find solutions to UAS integration into the NAS, as well as coordinate UAS activities state-wide. To clarify, the focus of this proposed action is consideration of establishing restricted areas to support hazardous military training activities, not UAS integration into the NAS. The FAA notes that the NDAIT was not established until after the USAF airspace proposal was submitted to the FAA and many of the NDAIT members took the opportunity to submit comments on the proposal.

One commenter stated that the proposed airspace should be environmentally assessed for the broad array of military aircraft that would be expected to employ in conjunction with UAS. The FAA agrees and has confirmed that the Environmental Impact Statement for the bed down of the MQ-1 Predator at Grand Forks Air Force Base (AFB) addresses other aircraft that would likely train with the UAS in the proposed restricted area airspace complex.

Another commenter stated that the proposed restricted area airspace would eventually be activated almost full time as is the current Temporary Flight Restriction (TFR) over Grand Forks AFB. The TFR referred to by the commenter is contained in the Special Security Instruction authorized under 14 CFR 99.7 for Customs and Border Protection (CBP) UAS operations conducted from Grand Forks AFB. Although the TFR is active while the CBP UAS is flying, it allows airspace access by non-participant aircraft using procedural separation rules. The restricted areas proposed by this action are being established with specific times of designation, to support the hazardous non-eye safe laser training conducted by the USAF. The times are described by “core hours” and also may be activated by NOTAM to allow for training periods outside the core hours, i.e. at night.

Twenty commenters argued that the proposal is contrary to FAA policy, in that it is designed for the sole purpose of separating non-hazardous types of VFR aircraft. The FAA has established this restricted area airspace to confine the MQ-1 Predator employment of a non-eye safe targeting laser, which is hazardous to nonparticipating pilots. This laser training for UAS pilots must be contained in restricted areas to confine the hazardous activity, as well as protect non-participating aircraft flying in the vicinity of the restricted areas. Even though the Predator operations in the restricted areas will normally occur in Visual Meteorological Conditions (VMC), the UAS will be on an IFR flight plan in accordance with U.S. Air Force requirements.

Two commenters requested that the FAA establish a formal, annual review process and public report on the use and impacts of any designated airspace associated with UAS activity in Grand Forks, ND. The request to establish a formal annual review process with public reporting on use and impacts falls outside the scope of this proposed action. However, the FAA has a Restricted Area Annual Utilization reporting program already established to assist the FAA in managing special use airspace areas established throughout the NAS. These annual utilization reports provide objective information regarding the types of activities being conducted, as well as the times scheduled, activated, and actual use, which the FAA uses to assess the appropriate use of the restricted areas.

Nineteen commenters recommended that proposed restricted airspace have a “sunset” date. The restricted areas are established to confine hazardous non-eye safe laser training, which will continue as long as the Predator UAS are operating from Grand Forks AFB. Technology developments to integrate UAS into the NAS with manned aircraft, as well as military Tactics, Techniques and Procedures (TTP) maturation may provide an opportunity to reconfigure the restricted area airspace at a future date, but the requirement for restricted area airspace will exist as long as the non-eye safe laser training is conducted.

One commenter recommended a requirement for equipping the UAS with forward viewing sensors that would enable the UAS to comply with 14 CFR part 91 see-and-avoid rules. While the FAA is working with the industry to develop see-and-avoid solutions for the safe and eventual seamless integration of UAS into the NAS, this suggestion is outside the scope of this action.

One commenter asked that the proposal be tabled until the FAA publishes its final Order/Advisory Circular regarding UAS operations in the NAS. The Order/Advisory Circular address the integration of UAS in the NAS, which is separate from the action of establishing restricted area airspace to confine hazardous non-eye safe laser training activities. This action is necessary to support the military's training requirement beginning this summer. The FAA is completing this airspace action separate from its UAS NAS integration guidance development efforts.

Several commenters recommended that instead of creating new SUA for these activities that the USAF use existing restricted areas or the airspace subject to flight restrictions under § 99.7 SSI and used by the Customs & Border Protection Agency (CBP) at Grand Forks AFB. The FAA advocates the use of existing SUA and requires proponents to examine all reasonable alternatives, prior to considering the need to establish new SUA. In this case, the USAF conducted an extensive analysis of alternatives and considered criteria including proximity to Grand Forks AFB, existence of a suitable air-to-ground range for laser targeting, and air traffic density both en route and at the training complex. The Beaver MOA in north central Minnesota is approximately three times as far as the proposed airspace, has much heavier air traffic density, and has no air-to-ground gunnery range. The Tiger MOAs in north central North Dakota are the same distance as the proposed airspace, have favorable air traffic density, but have no air-to-ground gunnery range. The airspace in the vicinity of the existing CBP § 99.7 SSI flight restriction would be closer, but has much higher traffic density and complexity, and has no air-to-ground range. Additionally, there were no useable restricted areas within reasonable distance of Grand Forks AFB for consideration. The FAA believes the USAF considered and analyzed the alternatives to this action and that establishing new SUA is the only reasonable option.

One commenter suggested that the restricted area complex be moved north of Devils Lake. The FAA notes that the USAF studied an alternative of establishing restricted areas in the Tiger North and Tiger South MOAs, located north of Devils Lake, ND. While proximity to Grand Forks AFB and the air traffic density compared favorably to the proposed airspace area, the lack of an air-to-ground gunnery range suitable for hazardous laser training made this option operationally unfeasible. The FAA accepted the USAF's consideration and analysis of this alternative and proposed establishing the restricted areas set forth in this action.

One commenter recommended that the proposed airspace be moved to another state as it would impact flying training in the vicinity of Grand Forks. This airspace proposal resulted from Congress' Base Realignment and Closure Commission of 2005 decision to retain Grand Forks Air Force Base in North Dakota for an emerging UAS mission. As addressed previously, Beaver MOA in north central Minnesota is the nearest SUA outside of North Dakota. It was approximately three times the distance from Grand Forks AFB, has much higher air traffic density airspace, and has no air-to-ground gunnery range for hazardous laser training. The FAA recognizes the proposed restricted areas could impact civil flight training, largely conducted by the University of North Dakota and east of the proposed complex. Additionally, nearly all civil flight training activity that currently occurs in the vicinity of the restricted areas would take place below the proposed R-5403 footprint. Whereas the floor of R-5402 goes down to 500 feet above ground level (AGL), its cylinder footprint was reduced to a 7 NM radius around R-5401 and the Camp Grafton Range to mitigate impacts to these civil operations. This airspace action provides a reasonable balance between military training requirements and accommodation of non-participant flight training.

Three commenters stated that the vast size of the restricted area complex is not necessary. The restricted areas being established by this action provide the minimum vertical and lateral tactical maneuvering airspace required for UAS operators to accomplish target acquisition prior to attack, and then contain the non-eye safe laser during firing. The restricted area complex was configured to confine two UAS operating on independent mission profiles at the same time, while minimizing airspace impacts to non-participating aircraft. As the UAS training flight transitions from one phase of the mission profiles to another, unused segments will be deactivated and returned to the NAS consistent with the FAA's Joint Use Airspace policy. The subdivided and stratified configuration of the restricted area complex enables the USAF to only activate the restricted areas needed for their training sorties while leaving the rest of the complex inactive and available for NAS users. The FAA believes the segmentation and stratification of the complex will enhance civil access to those parts of the complex not activated for USAF training requirements. Actual procedures for restricted area activation and deactivation will be defined in a Letter of Procedure between the using and controlling agencies.

Two commenters asked if the USAF could find a less cluttered area with more suitable weather for MQ-1 Predator operations. The FAA acknowledges that weather challenges will exist for the MQ-1 Predator operations at Grand Forks AFB. The decision to base Predator UAS at Grand Forks AFB, however, was mandated by Congress. The restricted areas proposed by this action were situated and proposed in the only location that met the USAF's operational requirements of proximity to launch/recovery base, low air traffic density, and availability of an existing air-to-ground gunnery range suitable for the hazardous non-eye safe laser training activities.

One commenter contended that Alert Areas are more appropriate for UAS training activity. Alert Areas are designated to inform nonparticipating pilots of areas that contain a high volume of pilot training operations, or an unusual type of aeronautical activity, that they might not otherwise expect to encounter. However, only those activities that do not pose a hazard to other aircraft may be conducted in an Alert Area. Since employment of the non-eye safe laser carried by the MQ-1 Predator UAS is an activity hazardous to non-participants, an Alert Area is not an appropriate airspace solution.

Two commenters stated that the Air Force is proposing restricted areas as a means to mitigate for lack of see-and-avoid capability for UAS operations. They noted, correctly, that the Air Force could use ground-based or airborne assets to provide see-and-avoid compliance instead. FAA policy dictates that restricted areas are established to confine activities considered hazardous to non-participating aircraft. As mentioned previously, the focus of this action is establishing restricted areas to support hazardous military training activities, not UAS integration into the NAS. As such, the FAA does not support establishing restricted areas as a solution to overcome UAS inability to comply with 14 CFR Part 91 see-and-avoid requirements. The FAA is establishing the restricted areas addressed in this action to confine the hazardous non-eye safe laser training activities conducted by the USAF.

One commenter stated that new restricted airspace should be offset by reallocation of unused SUA elsewhere in the NAS. The proposed restricted areas fall almost entirely within the existing Devils Lake East MOA. When activated, the new restricted areas will be, in effect, replacing existing SUA. Although the regulatory and non-regulatory process for establishing SUA is not directly linked to the restricted area and MOA annual utilization reporting process, the FAA does review restricted area and MOA utilization annually. If candidate SUA areas are identified, the FAA works with the military service to appropriately return that airspace to the NAS.

Seventeen commenters stated that Predator pilots can get the same training through simulation. The FAA cannot determine for the USAF the value of simulated UAS operator training over actual flying activities. The USAF is heavily investing in Live, Virtual, and Constructive (LVC) training options. As the commenters infer, the migration to a virtual training environment would be expected to reduce the demand for activating R-5402 and R-5403A-F. However, actual employment of the non-eye safe laser will still be required for both training proficiency and equipment validation. This action balances the training airspace requirements identified by the USAF as it matures its UAS capabilities with the airspace access requirements of other NAS users.

Twenty commenters addressed the increased collision hazard due to air traffic compression at lower altitudes and around the periphery of the proposed complex. The FAA recognizes that compression could occur when the restricted areas are active; however, the actual impact will be minimal. The FAA produced traffic counts for the 5 busiest summer days and 5 busiest winter days of 2011 during the proposed times of designation (0700-2200L) from 8,000 feet MSL to 14,000 feet MSL. Totals for all IFR and known VFR aircraft ranged between 4 and 22 aircraft over the 17-hour span. Volumes such as this are easily managed by standard ATC procedures. To enhance non-radar service in the far western part of the proposed complex, the FAA is considering a separate rulemaking action to modify V-170 so that it will remain clear of R-5402 to the west. On average, four aircraft file V-170 over a 24-hour day. Lastly, the FAA is nearing completion of a project to add three terminal radar feeds, from Bismarck, Fargo, and Minot AFB, covering the restricted area airspace area into Minneapolis ARTCC. These feeds will improve low altitude radar surveillance and enhance flight safety around the proposed restricted areas.

One commenter argued that the proposed airspace should be limited to daylight hours only. While daytime flying is usually safer in a visual see-and-avoid environment; when it comes to the military training for combat operations, darkness provides a significant tactical advantage and UAS must be capable of operating both day and night. While the USAF has a valid and recurring requirement to train during hours of darkness, the USAF was able to accept a 2-hour reduction in the published times of designation core hours from “0700-2200 daily, by NOTAM 6 hours in advance,” to “0700-2000 daily, by NOTAM 6 hours in advance.”

Another commenter sought details on the UAS lost link plan. Although the lost link plan is not within the scope of this action, the FAA does require detailed procedures for UAS lost link situations for all UAS operations. These procedures will be similar to those in place today for UAS operations across the NAS. The servicing ATC facility and UAS operators closely coordinate lost link procedures and will incorporate them into the implementing Letters of Procedure (LOP) for the restricted areas established in this rule.

Two commenters commented that the proposed restricted area complex stratification and segmentation was confusing and would lead to SUA airspace incursions. The FAA promotes stratifications and segmentation of large SUA complexes to maximize the safety and efficiency of the NAS and to enable more joint use opportunities to access the same airspace by non-participating aircraft. Sub-dividing the complex permits activation of a small percentage of the overall complex at any one time while still providing for a diverse set of training profiles during UAS sorties, which is especially well-suited for long duration UAS training missions. Additionally, enhanced joint use access eases compression of air traffic in the local area; thus, increasing flight safety.

Nineteen commenters noted that UAS will not be able to see-and-avoid large flocks of birds using migratory flyways, which could create a hazard for personnel on the ground. Both Grand Forks AFB and the University of North Dakota flight school, located at the Grand Forks International Airport, have conducted extensive research into bird strike potential and prevention. Their research found that more than 90 percent of bird strikes occur below 3,500 feet AGL and that there are predictable windows for migratory bird activity, which are adjusted year-to-year based on historical and forecast weather patterns. Also, bird strikes are nearly twice as likely to occur at night compared to the day. The USAF has long standing bird strike avoidance procedures specifically customized for Grand Forks AFB, which will be optimized for UAS operations. Other mitigations include having the bases of the restricted airspace well above most bird activity, conducting most training during daylight hours, and adjusting UAS operations during seasonal migratory activity. These mitigations conform to both civil and military standard bird strike avoidance measures that are in place across the NAS.

Eighteen commenters contended that persons and property under the proposed airspace would not be protected from the non-eye safe laser training. The USAF conducted a laser safety study in 2009 for the Camp Grafton Air-to-Ground Range. This range, where the laser targets will be placed, lies within the existing R-5401. The study examined laser and aircraft characteristics, topography, target composition, and employment parameters, and determined that the proposed airspace would adequately protect persons and property outside the footprint of R-5401. Personnel working at the range will use proper protective gear should they need to access the target areas during laser employment periods. The FAA has reviewed and accepts the USAF's laser safety study. The restricted areas established by this action are designed to allow laser employment without hazard to persons and property in the vicinity of R-5401.

Two commenters stated that it is dangerous to mix UAS with visual flight rules (VFR) air traffic. UAS are permitted to fly outside restricted area airspace in the NAS today and in the vicinity of VFR aircraft, under FAA approved Certificate of Waiver or Authorization (COA). Specific to this action, UAS operations will be occurring inside restricted area airspace that is established to confine the hazardous non-eye safe laser training activities; thus, segregated from nonparticipating aircraft.

One commenter said that VFR pilot violations will increase and those less informed will pose a safety hazard. The FAA interpreted the commenters use “violations” to mean SUA airspace incursions. VFR pilots must conduct thorough pre-flight planning and are encouraged to seek airborne updates from ATC on the status of SUA. The FAA finds that the restricted areas established by this action pose no more risk of incursion or safety hazard than other restricted areas that exist in the NAS.

Two commenters observed that the NPRM failed to identify how UAS would transit from Grand Forks AFB to the proposed restricted areas. The FAA considers UAS transit and climb activities to be non-hazardous; therefore, establishing new restricted areas for transit and climb purposes is inappropriate. While UAS transit and climb activities are non-hazardous, they are presently atypical. Therefore, specifics on transit and climb ground tracks, corridor altitudes and widths, and activation procedures will be accomplished procedurally and consistent with existing COA mitigation alternatives available today. The establishment of restricted areas airspace is focused on the hazardous non-eye safe laser training activities.

Twenty four commenters noted that the proposed restricted areas would block V-170 & V-55 and impact V-169 & V-561. The FAA acknowledges that the proposed restricted area complex will have a minimal impact on three of the four Victor airways mentioned, depending on the restricted areas activated. The airway analysis began with V-170, which runs between Devils Lake, ND, and Jamestown, ND, with a Minimum En route Altitude (MEA) of 3,500 feet MSL along the effected segment of the airway. An average of four aircraft per day filed for V-170. R-5402, when active, impacts V-170 from 1200 feet AGL to 10,000 feet MSL. The FAA is considering a separate rulemaking action to modify V-170 by creating a slight “dogleg” to the west, which would allow unimpeded use of V-170 below 8,000 feet MSL regardless of the status of R-5402. Impacts to V-170 above 8,000 feet MSL are dependent upon which restricted areas are active.

V-55 runs between Grand Forks, ND, and Bismarck, ND, with an MEA of 8,000 feet MSL along the affected segment of the airway. An average of 7 aircraft per day filed for V-55. Activation of R-5402, R-5403A, R-5403B, or R-5403C would have no impact on V-55. The FAA raised the floor of R-5403D to 10,000 feet MSL and reduced the blocks for R-5403D and R-5403E to 2,000 feet each to allow ATC more flexibility to climb/descend IFR traffic on V-55. The FAA is also considering establishing a Global Positioning Satellite MEA along the affected segment of V-55 to allow properly equipped non-participating aircraft to fly the V-55 ground track, but at a lower altitude.

V-561 runs between Grand Forks, ND, and Jamestown, ND, with an MEA of 4,000 feet MSL along this segment of the airway. An average of two aircraft per day filed for V-561. When activated, the southeast corner of R-5403D, R-5403E, and R-5403F encroach upon V-561 from 10,000 feet MSL-11,999 feet MSL, 12,000 feet MSL-13,999 feet MSL, or 14,000 feet MSL-17,999 feet MSL, respectively.

V-169 runs between Devils Lake, ND, and Bismarck, ND, with an MEA of 3,500 feet MSL along this segment. The nearest point of any restricted area is 5 nautical miles (NM) from the centerline of V-169. Since Victor airways are 4 NM wide; the restricted areas do not encumber the use of V-169.

The FAA acknowledges potential impacts to users on Victor airways V-55, V-170, and V-651 by the restricted areas established in this action. However, based on the 13 total average daily flights filing for V-55, V-170, and V-651 in the same airspace as the proposed restricted area complex (V-169 is not affected by the proposed airspace), the impacts of the restricted areas on the three affected airways is considered minimal. These aircraft have air traffic control procedural alternatives available to include vectoring, altitude change, or re-routing as appropriate.

Nineteen commenters found that transcontinental and local area flights would be forced to deviate around restricted areas, increasing cost and flight time. The FAA understands that when the restricted areas are active, non-participation aircraft will have to accomplish course deviations or altitude changes for avoidance, which can increase distances flown and costs incurred. For this action, the FAA and USAF worked together to define the minimum airspace volume necessary to meet USAF training mission requirements and maximize airspace access to other users of the NAS. Reducing the overall size and internally segmenting and stratifying the complex have reduced course deviation distances and altitude changes required by non-participants to avoid active restricted areas. Additionally, the USAF as agreed to temporarily release active restricted airspace back to ZMP for non-participant transit during non-routine/contingency events (i.e. due to weather, icing, aircraft malfunction, etc.). Air traffic in this part of the NAS is relatively light and the level of impact associated with establishing the restricted areas in this action is considered minimal when balanced against valid military training requirements.

Twenty-four comments were received stating that four hours prior notice is insufficient lead time for activation by NOTAM, with most recommending that the prior notification time be increased to six hours. The FAA recognizes that many aircraft today have flight durations long enough that flight planning before takeoff may occur outside of the 4-hour window. Restricted areas provide protected airspace for hazardous operations with no option to transit when active, so changes in airspace status after flight planning would have an impact on routing or altitude. These impacts could be reduced by increasing the NOTAM notification time; therefore the proposed time of designation for R-5402 and R-5403A-F is amended to “0700-2000 daily, by NOTAM 6 hours in advance; other times by NOTAM.”

One commenter stated that the SUA should be limited to published times of designation or times that can be obtained through an Automated Flight Service Station (AFSS) or ZMP. The times of designation for the restricted areas conforms to FAA policy and provides military users the operational flexibility to adjust for unpredictable, yet expected events, such as poor weather conditions or aircraft maintenance delays. By establishing the restricted areas with a “By NOTAM” provision for activations, the AFSS will receive scheduled activation times at least 6 hours in advance and can provide activation information when requested. Additionally, ZMP can provide the most current restricted areas status to airborne aircraft, workload permitting, as an additional service to any requesting IFR or VFR aircraft.

Nineteen commenters contended that local and transient pilots would avoid the restricted areas regardless of the activation status. The FAA understands that some pilots may opt to avoid the vicinity of this proposed airspace complex; however, pilots have multiple ways to obtain SUA schedule information during preflight planning and while airborne to aid their situational awareness. Daily SUA schedules will be available on the sua.faa.gov Web site, NOTAMs will be issued at least 6 hours prior to activating the restricted areas, and AFSS will brief SUA NOTAMS upon request. Airborne updates will also be available through ZMP or AFSS. Lastly, the USAF will provide a toll-free phone number for inclusion on aeronautical charts that will enable NAS users to contact the scheduling agency for SUA status information; similar to what is in place for the Adirondack SUA complex in New York.

Two commenters requested that the FAA chart an ATC frequency for updates on the restricted areas. The FAA has frequencies listed on both the L-14 IFR Enroute Low Altitude Chart and the Twin Cities Sectional Aeronautical Chart already. Upon review, the VHF frequency listed on the IFR Enroute Low Altitude Chart near where R-5402 and R-5403A-F restricted areas will be established was found to be different than the frequency listed on the Sectional Aeronautical Chart listing of SUA for the existing R-5401 (which R-5402 and R-5403A-F will overlay). The FAA is taking action to correct the discrepancy so that matching frequencies are charted.

Seventeen commenters stated that the NOTAM system is generally inadequate to inform users of SUA status, and the number of components to this restricted airspace would lead to intricate and confusing NOTAMs. The restricted area complex is comprised of 7 individual areas and structured to minimize complexity and maximize nonparticipant access when not required for military use during certain phases of a training mission. The overall complex configuration, with seven sub areas, is a reasonable balance between efficiency, complexity, and military requirements. The NOTAM system is designed to disseminate many types of aeronautical information, including restricted area status when activation is “By NOTAM” or outside published times of designation. Because of the “By NOTAM” provision in the legal description times of designation, activation NOTAMs for R-5402 and R-5403A-F will be included in verbal briefings from AFSS, upon pilot request.

The FAA is amending 14 CFR part 73 to expand the vertical and lateral limits of restricted area airspace over the Camp Grafton Range to contain hazardous non-eye safe laser training operations being conducted by the emerging UAS mission at Grand Forks Air Force Base (AFB); thus, transforming the range into a viable non-eye safe laser training location. Camp Grafton Range is currently surrounded by R-5401; however, the lateral boundaries and altitude are insufficient to contain the laser training mission profiles and tactics flown in combat operations today. This action supplements R-5401 by establishing additional restricted areas, R-5402, R-5403A, R-5403B, R-5403C, R-5403D, R-5403E, and R-5403F, to provide the vertical and lateral tactical maneuver airspace needed for UAS target acquisition prior to attack, and to contain the non-eye safe laser during laser target designation training operations from medium to high altitudes.

The restricted area R-5402 is defined by a 7 nautical mile (NM) radius around the center of R-5401, with the northern boundary adjusted to lie along the 47°45′00″ N latitude. The restricted area altitude is upward from 500 feet above ground level to, but not including 10,000 feet MSL. This new restricted area provides a pathway for the non-eye safe laser beam to transit from R-5403A, R-5403B, and R-5403C (described below) through the existing R-5401 and onto Camp Grafton Range.

The restricted areas R-5403A, R-5403B, and R-5403C share the same lateral boundaries, overlying R-5402 and layered in ascending order. The northern boundary of these R-5403 areas, as described in the regulatory text, share the same northern boundary as R-5402, the 47°45′00″ N latitude. The western boundary lies approximately 14 NM west of R-5402 along the 99°15′00″ W longitude and the eastern boundary lies approximately 7 NM east of R-5402 along the 98°15′00″ W longitude. Finally, the southern boundary is established to remain north of the protected airspace for V-55. The restricted area altitudes, in ascending order, are defined upward from 8,000 feet MSL to, but not including 10,000 feet MSL for R-5403A; upward from 10,000 feet MSL to, but not including 14,000 feet MSL for R-5403B; and upward from 14,000 feet MSL to, but not including Flight Level (FL) 180 for R-5403C. The additional lateral and vertical dimensions provided by these restricted areas, in conjunction with R-5401, R-5402, R-5403D, R-5403E, R-5403F, establish the maneuvering airspace needed for UAS aircraft to practice the tactical maneuvering and standoff target acquisition training requirements necessary for the combat tactics and mission profiles flown today and to contain the hazardous non-eye safe laser, when employed, completely within restricted airspace.

The areas R-5403D, R-5403E, and R-5403F also share the same lateral boundaries, adjacent to and southeast of R-5403A, R-5403B, and R-5403C, and are also layered in ascending order. The northern boundary of these R-5403 areas, as described in the regulatory text, shares the southern boundary of R-5403A, R-5403B, and R-5403C. The western boundary point reaches to the 99°15′00″ W longitude and the eastern boundary lies along the 98°15′00″ W longitude. Finally, the southern boundary is established to lie along the 47°15′00″ N latitude. The restricted area altitudes, in ascending order, are defined upward from 10,000 feet MSL to, but not including 12,000 feet MSL for R-5403D; upward from 12,000 feet MSL to, but not including 14,000 feet MSL for R-5403E; and upward from 14,000 feet MSL to, but not including Flight Level (FL) 180 for R-5403F. The additional lateral and vertical dimensions provided by these restricted areas, in conjunction with R-5401, R-5402, R-5403A, R-5403B, R-5403C, and the Camp Grafton Range, establish the maneuvering airspace, standoff target acquisition, and hazardous non-eye safe laser employment training completely within restricted airspace, as noted above.

During the NPRM public comment period, it was realized that the proposal section of the NPRM preamble described the southern boundary for the proposed R-5403D, R-5403E, and R-5403F to lay along the 47°30′00″ N latitude, in error. However, the regulatory text in the NPRM correctly described the southern boundary for these proposed restricted areas to lie along the 47°15′00″ N latitude. This action confirms the southern boundary for R-5403D, R-5403E, and R-5403F is along the 47°15′00″ N latitude.

Restricted areas R-5402, R-5403A, R-5403B, R-5403C, R-5403D, R-5403E, and R-5403F are all designated as “joint-use” airspace. This means that, during periods when any of the restricted airspace areas are not needed by the using agency for its designated purposes, the airspace will be returned to the controlling agency for access by other NAS users. The Minneapolis Air Route Traffic Control Center is the controlling agency for the restricted areas.

Lastly, to prevent confusion and conflict by establishing the new restricted areas in an existing MOA, and having both SUA areas active in the same volume of airspace at the same time, the Devils Lake East MOA legal description is being amended in the NFDD. The Devils Lake East MOA amendment will exclude R-5401, R-5402, R-5403A, R-5403B, R-5403C, R-5403D, R-5403E, and R-5403F when the restricted areas are active. The intent is to exclude the restricted areas in Devils Lake East MOA individually as they are activated. This MOA amendment will prevent airspace conflict with overlapping special use airspace areas.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows:

As presented in the discussion of comments section of this preamble, commenters stated that there could be the following potential adverse economic impacts from implementing this final rule: the rule will block V-170 and V-55 and limit the use of V-169 and V-561; VFR and local area flights will be forced to deviate around restricted areas, increasing cost and flight time; and the 500 feet AGL floor for R-5402 will affect low level aerial operations such as crop dusters, wildlife and agricultural surveys, and emergency medical access.

With respect to the first potential impact, as discussed in the preamble, the FAA acknowledges that users of Victor airways V-55, V-170, and V-561 could be potentially affected when the restricted areas established in this action are active; however users of V-169 will not be affected at all. Users of V-170 from 1200 feet AGL to 8,000 feet MSL would be affected only when R-5402 is active. The FAA's has determined that there is an average of 4 flights per day between Devils Lake, ND, and Jamestown, ND. Of these flights, 90 percent are general aviation flights (many of them University of North Dakota training flights) and 10 percent are military or air taxi flights. The potential effect on users of V-170 could be offset by several actions. One action would be to modify V-170 by creating a slight “dogleg” further west of R-5402 to allow unimpeded use of V-170 below 8,000 feet MSL regardless of the status of R-5402. The FAA estimates that this “dogleg” would add about 5 miles to the length of the flight between Devils Lake and Jamestown. Another action would be for air traffic control to either vector the aircraft west of R-5402 or climb the aircraft to 8,000 feet MSL to avoid R-5402. V-170 above 8,000 feet MSL, V-55, and V-561 can still be used by the public, even during military training operations, if the nonparticipant aircraft flies at a different altitude than the altitudes the military is using at that time. The FAA has determined that these adjustments will result in minimal cost to the affected operators.

With respect to the second potential impact, with the exception of R-5402, the public will not be required to deviate around the restricted areas, even during military operations, as long as the nonparticipating aircraft flies at an altitude above or below the altitudes that the military is using at that time. The FAA has determined that these altitude adjustments will have a minimal effect on cost.

With respect to the third potential impact, the USAF has agreed to implement scheduling coordination measures for R-5402 that will accommodate access by local farming, ranching, survey, and medical aviation interests. Further, when any of the restricted areas are not needed by the USAF for its intended purposes, the airspace will be returned to the controlling agency, Minneapolis Air Route Traffic Control Center, for access by other NAS users; providing considerable time for these interests to perform most of their aviation activities in a timely manner. The FAA has determined that these potential disruptions in public aviation will have a minimal effect on cost.

The FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The FAA received two comments from small business owners and a comment from the North Dakota Agricultural Aviation Association (NDAAA), representing agricultural aviation operators. The comments from the business owners expressed concerns about the availability of airspace and that they would be diverted from their normal flight plans, thereby increasing their costs. As previously stated in this preamble, however, these routes will not be closed even during military operations—they can be flown by nonparticipant aircraft so long as those aircraft are not at the altitudes being used by the military. The NDAAA comment that agricultural aircraft are frequently ferried at altitudes greater than 500 feet applies only to those aircraft in R-5402—not in any of the other areas. As previously noted, the agreement with the USAF and the fact that there are no restrictions in R-5402 when it is not being used by the military will minimize the potential economic impact to agricultural aviation operations in this airspace.

While the FAA believes that one air taxi operator, a few small business operators, and a few agricultural aviation operators constitute a substantial number of small entities, based on the previous analysis, the FAA determined that the final rule will have a minimal economic impact.

Therefore, as the acting FAA Administrator, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will have only a domestic impact and therefore no effect on international trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

Pursuant to Section 102(2) of the National Environmental Policy Act of 1969 (NEPA), the Council on Environmental Quality (CEQ) regulations implementing NEPA (40 CFR parts 1500-1508), and other applicable law, the USAF prepared and published The BRAC Beddown and Flight Operations of Remotely Piloted Aircraft at Grand Forks Air Force Base, North Dakota” dated July 2010 (hereinafter the FEIS) that analyzed the potential for environmental impacts associated with the proposed creation of Restricted Areas R-5402, R-5403A, R-5403B, R-5403C, R-5403D, R-5403E, and R-5403F. In September 2010, the USAF issued a Record of Decision based on the results of the FEIS. In accordance with applicable CEQ regulations (40 CFR 1501.6) and the Memorandum of Understanding (MOU) between FAA and Department of Defense (DOD) dated October 2005, the FAA was a cooperating agency on the FEIS. The FAA has conducted an independent review of the FEIS and found that it is an adequate statement. Pursuant to 40 CFR 1506.3(a) and (c), the FAA is adopting the portions of the FEIS for this action that support the establishment of the above named restricted areas. The FAA has documented its partial adoption in a separate document entitled “Partial Adoption of Final EIS and Record of Decision for the Establishment of Restricted Areas R-5402 and 5403 .” This final rule, which establishes restricted areas R-5402, R-5403A, R-5403B, R-5403C, R-5403D, R-5403E, and R-5403F, will not result in significant environmental impacts. A copy of the FAA Partial Adoption of FEIS and ROD has been placed in the public docket for this rulemaking and is incorporated by reference.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.

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 the 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 restricted area airspace at Camp Grafton Range, near Devils Lake, ND, to enhance safety and accommodate essential military training.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

Paperwork Reduction Act

The collection of information contained in these regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-1433. The collection of information in these final regulations is required in order for the parent of a consolidated group to make the election found in § 1.1502-13(f)(5)(ii)(B).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

This document contains amendments to 26 CFR part 1. On September 4, 2009, the IRS and Treasury Department published temporary (TD 9458, 2009-43 IRB 547) and proposed (REG-139068-08, 2009-43 IRB 558) regulations in the Federal Register (74 FR 45757 and 74 FR 45789, respectively). The regulations modify the election under which a consolidated group can avoid immediately taking into account an intercompany item after the liquidation of a target corporation. On March 4, 2011, the IRS and Treasury Department published final regulations in the Federal Register (TD 9515, 76 FR 11956), which republished the 2009 temporary regulations without substantive change, to make a minor correction to the ordering of the regulations as they appeared in the Federal Register . The IRS and the Treasury Department received no comments responding to the proposed and temporary regulations. No public hearing was requested or held. Therefore, this document adopts the provisions of the proposed regulations with no substantive change and the corresponding temporary regulations are removed. See § 601.601(d)(2).

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866 as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that this regulation primarily affects members of consolidated groups which tend to be large corporations. Accordingly, a regulatory flexibility analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business. No comments were received.

The principal authors of these final regulations are Mary W. Lyons, formerly of the Office of Associate Chief Counsel (Corporate), and Michael R. Gould of the Office of Associate Chief Counsel (Corporate). However, other personnel from the IRS and Treasury Department participated in their development.

Accordingly, 26 CFR parts 1 and 602 are amended as follows:

Executive Summary I. Purpose of this Regulatory Action

a. The ITEP Pilot is envisioned to promote the interchange of DoD and private sector IT professionals to enhance skills and competencies. Given the changing workforce dynamics in the IT field, DoD needs to take advantage of these types of professional development programs to proactively position itself to keep pace with the changes in technology.

To date, one private sector candidate has been successfully placed and completed a 6 month ITEP assignment with the DoD Office of the Under Secretary of Defense (Comptroller). Two additional private sector candidates have been identified for ITEP assignments and the details of these assignments are currently being worked with the respective sponsoring organizations. We anticipate that both candidates will onboard to DoD in the third quarter of Fiscal Year 2012. The Department has posted nine ITEP detail opportunity announcements for private sector candidates to the DoD ITEP Web site related to service oriented architecture, cybersecurity, IT project management, IT infrastructure/consolidation, social media, and mobility and wireless. An announcement has also been posted on the ITEP Web site for a DoD employee to participate in a detail in networking with a small, veteran-owned private sector company.

b. This regulation implements section 1110 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), which authorizes DoD to implement a Pilot Program for the Temporary Exchange of Information Technology (IT) Personnel. This statute authorizes the temporary assignment of DoD IT employees to private sector organizations. This statute also gives DoD the authority to accept private sector IT employees assigned under the Pilot.

This Pilot Program (“Pilot”) is authorized by section 1110 of the NDAA for FY2010 (Pub. L. 111-84). Section 1110 authorizes DoD Components to assign exceptional IT employees to a private sector organization for purposes of training, development and sharing of best practices. It also gives DoD Components the authority to accept comparable IT employees on an assignment from the private sector for the training and development purposes and sharing of best practices and insight of government practices.

The cost of employee's salary and benefits will be paid by the originating employer. It is anticipated that the benefit will outweigh the cost to manage this program and any additional cost would be related to travel or cost to attend training or conferences.

The DoD ITEP interim final rule, Title 32 of the Code of Federal Regulations (CFR) Part 241 was published in the Federal Register , Vol. 75, No. 239 pages 77753-77756 on December 14, 2010 for public comment. The comment period ended on February 14, 2011. DoD received no comments.

However, the Department did make minor changes to the final rule that were not included in the interim rule. These changes were based upon clarifying terms, responsibilities and procedures pertaining to the implementation of the ITEP pilot.

The minor changes that were made to the final rule can be found in the following sections:

241.1 Purpose. (b) The first and second sentence was clarified to read “DoD Component authorized approving official” from the interim rule title “Heads of DoD Components.”

241.2 Definitions. The first definition title was updated to read “Detail” from the interim rule title “assignment”. This is changed throughout the document. The fourth definition title was updated to read “Information technology (IT)” from the interim rule title “Information technology management”.

241.6 Length of details. The title of this section was updated from the interim rule title “Length of assignments”.

It has been certified that 32 CFR part 241 does not:

(1) Have an annual effect on the economy of $100 million or more, or may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, environment, public health or safety, or State, local or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.

It has been certified that 32 CFR part 241 does not contain a Federal mandate that may result in expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

It has been certified that 32 CFR part 241 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.

It has been certified that 32 CFR part 241 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. While detailed to DoD, a private sector ITEP candidate is deemed to be an employee of the DoD for certain purposes and is bound by applicable federal and DoD regulations regarding personal conduct, security requirements and ethical behavior.

It has been certified that 32 CFR part 241 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of Government.

Accordingly, 32 CFR part 241 is revised to read as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2010-0615 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 20, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2010-0615, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), Mail Code: 28221T, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.htm.

In the Federal Register of August 11, 2010 (75 FR 48667) (FRL-8840-6), EPA issued a notice pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP #0F7721) by Syngenta Crop Protection, Inc., Regulatory Affairs, P.O. Box 18300, Greensboro, NC 27419-8300. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide sedaxane, in or on barley, grain, seed at 0.01 parts per million (ppm); barley, hay, seed at 0.05 ppm; barley, straw, seed at 0.01 ppm; canola, seed at 0.01 ppm; oat, grain, seed at 0.01 ppm; rye, seed at 0.01 ppm; soybean, forage, seed at 0.06 ppm; soybean, hay, seed at 0.4 ppm; soybean, seed at 0.01 ppm; triticale, seed at 0.01 ppm; wheat, forage, seed at 0.02 ppm; wheat, grain, seed at 0.01 ppm; wheat, hay, seed at 0.07 ppm; and wheat, straw, seed at 0.01 ppm. That notice referenced a summary of the petition prepared by Syngenta Crop Protection, Inc., the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has modified the tolerances to correct commodity definitions and to recommend tolerances other than the proposed tolerances. The reasons for these changes are explained in Unit IV.C.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The toxicological effects reported in the submitted animal studies such as mitochondrial disintegration and glycogen depletion in the liver are consistent with the pesticidal mode of action also being the mode of toxic action in mammals. The rat is the most sensitive species tested, and the main target tissue for sedaxane is the liver. Sedaxane also caused thyroid hypertrophy/hyperplasia. In the acute neurotoxicity (ACN) and sub-chronic neurotoxicity (SCN) studies, sedaxane caused decreased activity, decreased muscle tone, decreased rearing and decreased grip strength.

There are indications of reproductive toxicity in rats, but these effects did not result in reduced fertility. In the rat, no adverse effects in fetuses were seen in developmental toxicity studies at maternally toxic doses. However, in the rabbit, fetal toxicity was observed at the same doses as the dams. Offspring effects in the reproduction study occurred at the same doses causing parental effects, thus there was no qualitative increase in sensitivity in rat pups. Sedaxane is tumorigenic in the liver in the rat and mouse, and led to tumors in the thyroid and uterus in the rat and was classified as “likely to be carcinogenic to humans.” Sedaxane was negative in the mutagenicity studies. The 28-day dermal study did not show systemic toxicity at the limit dose of 1,000 milligrams/kilogram/day (mg/kg/day). Sedaxane has low acute toxicity by the oral, dermal, and inhalation routes. It is not a dermal sensitizer, causes no skin irritation and only slight eye irritation.

Specific information on the studies received and the nature of the adverse effects caused by sedaxane as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Sedaxane. Human Health Risk Assessment to Support New Seed Treatment Uses on Canola, Cereal Grains (Barley, Oat, Rye, Triticale, and Wheat), and Soybean”, dated February 16, 2012, pages 37-77 in docket ID number EPA-HQ-OPP-2010-0615.

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

A summary of the toxicological endpoints for sedaxane used for human risk assessment is shown in the following Table.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to sedaxane, EPA considered exposure under the petitioned-for tolerances. EPA assessed dietary exposures from sedaxane in food as follows:

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

ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, EPA conducted a highly conservative chronic dietary risk assessment which used tolerance level residues and assumed 100 PCT for all commodities.

iii. Cancer. EPA determines whether quantitative cancer exposure and risk assessments are appropriate for a food-use pesticide based on the weight of the evidence from cancer studies and other relevant data. If quantitative cancer risk assessment is appropriate, cancer risk may be quantified using a linear or nonlinear approach. If sufficient information on the carcinogenic mode of action is available, a threshold or nonlinear approach is used and a cancer RfD is calculated based on an earlier noncancer key event. If carcinogenic mode of action data are not available, or if the mode of action data determines a mutagenic mode of action, a default linear cancer slope factor approach is utilized. Based on the data summarized in Unit III.A., EPA has concluded that sedaxane should be classified as “Likely to be Carcinogenic to Humans” and a linear approach has been used to quantify cancer risk. This finding is based on significant tumor increases in two adequate rodent carcinogenicity studies. EPA assessed exposure for the purpose of estimating cancer risk assuming tolerance level residues and 100 PCT for all commodities.

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

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

Based on the FQPA Index Reservoir Screening Tool (FIRST) and Tier II pesticide root zone model (PRZM) (grab working-level sampling, ground water (GW) (Prerelease Version), the estimated drinking water concentrations (EDWCs) of sedaxane for acute exposures are estimated to be 1.4 parts per billion (ppb) for surface water and 8.3 ppb for ground water. The water exposures for the chronic dietary and cancer assessments are estimated to be 0.9 ppb for surface water and 6.5 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 8.3 ppb was used to assess the contribution to drinking water. For chronic and cancer dietary risk assessment, the water concentration value of 6.5 ppb was used to assess the contribution to drinking water.

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

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found sedaxane to share a common mechanism of toxicity with any other substances. For the purposes of this tolerance action, therefore, EPA has assumed that sedaxane does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative .

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

2. Prenatal and postnatal sensitivity. The toxicological database for sedaxane is complete with regard to prenatal and postnatal toxicity, and there are no residual uncertainties. There is no evidence for increased susceptibility following prenatal and/or postnatal exposures to sedaxane based on effects seen in developmental toxicity studies in rabbits or rats. There was no evidence of increased susceptibility in a 2-generation reproduction study in rats following prenatal or postnatal exposure to sedaxane. There is no evidence of neuropathology or abnormalities in the development of the fetal nervous system from the available toxicity studies conducted with sedaxane. Clear NOAELs/LOAELs were established for the developmental effects seen in rats and rabbits as well as for the offspring effects seen in the 2-generation reproduction study. The dose-response relationship for the effects of concern is well characterized. The NOAEL used for the acute dietary risk assessment (30 mg/kg/day), based on effects observed in the ACN study, is protective of the developmental and offspring effects seen in rabbits and rats (NOAELs of 100-200 mg/kg/day).

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

i. The toxicity database for sedaxane is complete and includes the immunotoxicity study and neurotoxicity screening battery.

ii. The sedaxane toxicology database did not demonstrate evidence of neurotoxicity. There are no specific concerns for neurotoxicity as the observed effects in the ACN and SCN studies were likely secondary to inhibition of mitochondrial energy production caused by sedaxane. Sedaxane caused changes in apical endpoints such as decreased activity, decreased muscle tone, decreased rearing and decreased grip strength in the ACN and SCN studies. There was no corroborative neuro-histopathology demonstrated in any study, even at the highest doses tested (i.e., 2,000 mg/kg/day). Based on its chemical structure, its pesticidal mode of action and lack of evidence of neuro-histopathology in any acute and repeated-dose toxicity study, sedaxane does not demonstrate potential for neurotoxicity. Since sedaxane did not demonstrate susceptibility to the young or specific neurotoxicity, a developmental neurotoxicity (DNT) study is not required.

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

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to sedaxane in drinking water. These assessments will not underestimate the exposure and risks posed by sedaxane.

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

Sedaxane is a member of the pyrazole carboxamide fungicides. Metabolic processes involving cleavage of the linkage between the pyrazole and phenyl rings of these compounds have the potential to produce common pyrazole-metabolites. Indeed, confined rotational crops studies for sedaxane and isopyrazam demonstrate that low levels of three common metabolites form. However, due to the low levels of these compounds in rotational crops (≤0.01 ppm), and low concerns about their potential toxicity relative to parent molecules, any risks from aggregation of exposures to common metabolites across chemicals will be insignificant.

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to sedaxane will occupy <1% of the aPAD for all populations.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to sedaxane from food and water will utilize <1% of the cPAD for all populations. There are no residential uses for sedaxane.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). A short-term adverse effect was identified; however, sedaxane is not registered for any use patterns that would result in short-term residential exposure. Short-term risk is assessed based on short-term residential exposure plus chronic dietary exposure. Because there is no short-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short-term risk for sedaxane.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, sedaxane is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for sedaxane.

5. Aggregate cancer risk for U.S. population. The Agency has classified sedaxane as “Likely to be Carcinogenic to Humans” based on significant tumor increases in two adequate rodent carcinogenicity studies. Accordingly, a cancer dietary risk assessment was conducted, indicating a risk estimate of 7 × 10 −7 for the US population. This assessment assumed tolerance level residues, 100 PCT for all commodities, and included modeled drinking water estimates.

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

Adequate enforcement methodology is available to enforce the tolerance expression. A modification of the Quick, Easy, Cheap, Effective, Rugged, and Safe (QuEChERS) method was developed for the determination of residues of sedaxane (as its isomers SYN508210 and SYN508211) in/on various crops. A successful independent laboratory validation (ILV) study was also conducted on the modified QuEChERS method using samples of wheat green forage and wheat straw fortified with SYN508210 and SYN508211 at 0.005 and 0.05 ppm. The analytical standard for sedaxane, with an expiration date of April 2012, is currently available in the EPA National Pesticide Standards Repository. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov .

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established MRLs for sedaxane.

The tolerance levels for feedstuffs for soybean, forage; wheat, forage; wheat, hay; and barley, hay being established by EPA differ from those proposed in the tolerance petition submitted by Syngenta. The Agency used the Organization for Economic Cooperation and Development tolerance calculation procedures to determine that the following tolerance levels are needed: 0.05 for soybean, forage; 0.015 for wheat, forage; 0.06 for wheat, hay; and 0.04 for barley, hay. The petitioner did not propose separate tolerances for feedstuffs derived from oat and rye, however, the Agency is establishing them as follows: Oat, forage at 0.015; oat, hay at 0.06; oat, straw at 0.01; rye, forage at 0.015; and rye, straw at 0.01. The wheat trials depict low but finite residues in forage, straw, and hay. Syngenta proposed, and EPA agrees, that tolerances are needed on these wheat feedstuffs. Because EPA is relying on magnitude of the residue data from wheat and barley to establish oat and rye tolerances, due to the crop similarities and identical use patterns, tolerances on oat and rye feedstuffs are needed as well. A separate tolerance for triticale is not required as wheat tolerances cover triticale by definition 40 CFR 180.1(g).

Therefore, the following tolerances are established for residues of sedaxane, in or on wheat, grain at 0.01 ppm; barley, grain at 0.01 ppm; soybean, seed at 0.01 ppm; canola, seed at 0.01 ppm; oat, grain at 0.01 ppm; rye, grain at 0.01 ppm; soybean, forage at 0.05 ppm; soybean, hay at 0.04 ppm; wheat, forage at 0.015 ppm; wheat, hay at 0.06 ppm; wheat, straw at 0.01 ppm; barley, hay at 0.04 ppm; barley, straw at 0.01 ppm; oat, forage at 0.015 ppm; oat, hay at 0.06 ppm; oat, straw at 0.01 ppm; rye, forage at 0.015 ppm and rye, straw at 0.01 ppm.

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

On January 28, 2011, the Department of Transportation published a Final Rule making several program improvements to the Department's DBE program rule (49 CFR part 26) for financial assistance programs (76 FR 5083). On May 27, 2011, the Department issued a notice of proposed rulemaking (NPRM) that proposed conforming amendments to the Department's companion rule for the ACDBE program (49 CFR part 23). The Department received a total of nine comments concerning the NPRM from three ACDBE firms, two consultants, one trade association, two airport recipients, and one individual.

In the preamble to the proposed rule, the Department explained that it was not necessary to propose conforming changes to Part 23 that would be parallel to all of the Part 26 changes. The NPRM noted Part 23 has existing provisions that already conform many of the amendments in Part 26. It cited as an example that it was not necessary to include a Part 23 provision parallel to the change to § 26.11 concerning the frequency of reports, since § 23.27(b) already states the appropriate reporting frequency for Part 23 reports.

Additionally, the NPRM noted that there are many Part 26 amendments that apply automatically to Part 23 because certain sections in Part 23 incorporate provisions of Part 26. A list of these amendments was provided in the NPRM, with an explanation of their applicability to the ACDBE program, and are listed below again for reference:

• § 26.31: This amendment, requiring that the DBE directory include the list of each type of work for which a firm is eligible to be certified, applies to the ACDBE program as well.

• § 26.51: Applied in the ACDBE context, this amendment directs recipients that originally set all race-neutral goals to start setting race-conscious concession-specific goals if it appears that the race-neutral approach was not working.

• § 26.53: As applied to ACDBEs, this amended section sets forth the circumstances in which a prime concessionaire has good cause to terminate an ACDBE firm.

• § 26.71: Under this amended section, the types of work an ACDBE firm can perform must be described in terms of the most specific available NAICS code for that type of work.

• § 26.73: This amended section provides that certification of a firm may not be denied solely on the basis that it is a newly formed firm, has not completed projects or contracts at the time of its application, has not yet realized profits from its activities, or has not demonstrated a potential for success.

• § 26.81: The requirements for Unified Certification Programs (UCPs) were amended to require the UCP to revise the print version of the Directory at least once a year.

• § 26.83: The amended procedures for making certification decisions apply in the ACDBE context. The amendments include a new subsection that addresses the procedure for a certification decision involving an application that was withdrawn and then resubmitted.

• § 26.84: This section was removed in the recently issued Part 26 Final Rule.

• § 26.85: This is a section describing the process of interstate certification for a DBE firm. This includes the information the applicant must provide to the other state (“State B”), what actions State B must take when it receives an application, and appropriate reasons for making a determination that there is good cause to believe that the home state's, State A, certification of the firm is erroneous or should not apply in State B.

Today's final rule also includes the inflationary adjustment of the size limits on small businesses participating in the ACDBE program. On April 3, 2009, the DOT adopted a final rule that required it to adjust the general ACDBE gross receipts caps for inflation every two years using the same method, and to publish a final rule to update the size standard numbers. This final rule updates the ACDBE gross receipts caps that were published on April 3, 2009, to reflect 2011 dollars through the fourth quarter of calendar year 2011.

In an effort to ensure that the Part 26 changes made sense in the ACDBE context, the NPRM requested comments on the following as to whether there were terms or concepts in the Part 26 amendments that needed to be modified to conform to Part 23.

The Department received one comment from a trade association recommending the issuance of a guidance document to ensure that the objectives of improving interstate certification are achieved. In regards to the § 26.85 process, this same association was concerned that the process for interstate certification for an ACDBE firm would not be applied consistently. They strongly recommended that training be provided to address the special circumstances that arise in the ACDBE context and that a central agency should verify certifications where there were disparate results among different UCPs. The association also strongly recommended that key certification-related elements, such as the certification application and Personal Net Worth (PNW) forms list of requested items, be used without modification.

Another commenter believed that while improvement of interstate certification was a much needed initial step, DOT should adopt a program that recognized certifications nationally for ACDBE firms. This commenter identified several benefits for a national approach, including ease for a national prime concessionaire to solicit ACDBE participation in an airport concession regardless of geographic area, thereby increasing the availability and the participation of ACDBEs as sub-concessionaires. This commenter also noted that a national certification program would assist recipients in reporting car rental accomplishments, since any certified ACDBE utilized by the car rental companies (most of whom are national firms) could be included. The commenter continued by recommending that the rule be amended to allow a recipient to count the participation of an ACDBE firm that is certified in the firm's home state regardless of where the concession is located.

The Department agrees that standardizing forms and interpretations and providing and fostering training for UCP personnel that addresses airport concessions and ACDBE circumstances, can improve consistency in the review of ACDBE applications and in the interstate certification process. In support of these objectives, the Department noted in the final Part 26 rule that it plans to issue a follow-on NPRM that will address improvements in the certification application and PNW forms, which certification agencies then would be required to use without change. These changes would apply to the ACDBE program as well. However, the Department does not view having a central agency verify an ACDBE's certification status, after receiving disparate results among different UCPs, to be a practical solution. The purpose of the interstate certification process is to address the very issue of disagreements among certifying agencies in a consistent manner. Moreover, there is already an office to which a firm can appeal an ACDBE certification denial decision—the U.S. DOT's Departmental Office of Civil Rights.

The Department had previously requested comments on the issue of nationwide approaches to certification and had responded to those comments in the May 10, 2010, NPRM to Part 26 DBE program improvements (75 FR 25818 (2010)). The approach the Department finally adopted was to first take steps to make interstate certification easier under the current statewide approach to certification. The Department believes that this approach is a significant incremental step toward nationwide reciprocity, which would increase the likelihood of achieving the benefits identified for the ACDBE program.

Regarding the stated need for certification training, we note that there is a requirement in the recently enacted FAA Modernization and Reform Act of 2012 that the Department develop mandatory certification training. The Department is currently considering how best to implement this mandate. In doing so, we can build on existing certification training that the Department already provides through webinars, conferences, and workshops.

Though the Department stated in the NPRM that it would not propose a parallel provision in Part 23 for amended § 26.39 on fostering small business participation, we asked for comments on whether additional small-business-related provisions are needed in the concessions context. The Department explained that its current focus was on applying this provision to Federally-assisted contracting and associated issues such as “unbundling.” Two commenters responded with strong support for including a small business element in the ACDBE program that would unbundle large concession opportunities. They believed that certain business practices presented barriers to equitable participation by ACDBEs. The prime concessionaire model, they said, did not permit small-to-medium size ACDBEs to compete successfully for prime contract opportunities, as large firms under this model would be allowed to dominate the national marketplace as prime concessionaires. Consequently, this would create a significant obstacle for smaller firms trying to penetrate the market. Another reason given for including a small business element was that ACDBEs faced the same difficulties as other small businesses, such as obtaining loans. The association commenter stated that if a small business element provision was adopted for the ACDBE program, it should allow for a great deal of local flexibility in determining an airport's small business provisions, and that FAA should monitor recipients' programs to ensure that the new small business provision would not undermine the existing ACDBE program. This association also suggested that the FAA should review whether the SBA small business size standards are appropriate for ACDBEs and recommended that the FAA perform increased monitoring and enforcement of the good faith effort provisions. A commenter also suggested that FAA provide more guidance on this provision.

The Department appreciates the comments that have been received on the question regarding additional small business-related provisions in the concessions context. The initial response from commenters indicates there may be barriers to ACDBEs in the concessions program that a small business element may help to alleviate. Although we are not issuing a small business program requirement for the ACDBE program at this time, we will consider these comments in deciding whether to proceed with a small business provision for the ACDBE program in the future. The Department also hopes to learn from airport recipients' implementation of the small business element requirement for the Part 26 program.

To conform to the Part 26 inflationary adjustment in the personal net worth (PNW) cap, the NPRM proposed to amend § 23.35 by substituting $1.32 million for the current $750,000 as the personal net worth (PNW) standard. The NPRM explained that the Part 23 PNW provision is separate from the PNW provision in Part 26, so a specific Part 23 amendment was needed to maintain consistency between the two regulations. The ACDBE commenters strongly supported the PNW increase, and they applauded the Department for increasing the current standard to promote growth among ACDBEs and providing greater access to capital from financial institutions and capital markets.

One commenter, however, disagreed with the use of the Consumer Price Index (CPI) for determining the PNW increase, saying that it presumes erroneously that an ACDBE owner has grown his or her personal worth at the same rate as a non-ACDBE. The commenter suggested instead that the Department conduct an independent analysis to arrive at a PNW amount. The commenter also suggested that there be a lower PNW limit for ACDBEs entering the program, and a higher PNW limit for ACDBEs that are growing and may eventually graduate from the program. Two commenters suggested that further rulemaking was needed to make automatic adjustments to the PNW for inflation. One suggestion was to make the adjustment at a regular interval of every two or three years.

The Department also received several comments on the issue of retirement assets. Two ACDBEs, an ACDBE consultant, and an association strongly supported a change in the rule to exempt retirement assets from the disadvantaged business owner's PNW. Two commenters believed that it would be poor policy to discourage owners from providing for their retirement. They suggested that, as a minimum, certain types of retirement assets, such as company sponsored 401(k), profit sharing, and pension plans, which have capped contributions and are regulated by federal law, should be excluded from the PNW.

The Department has adopted the Part 26 inflationary adjustment of the PNW cap to $1.32 million for the Part 23 program, with the inflationary adjustment based on the Department of Labor's consumer price index (CPI) calculator. In choosing the CPI, the Department explained in the final Part 26 rule that the CPI appeared to be the one approach that is most relevant to an individual's personal wealth. While no index is perfect, the more complex approaches suggested by some commenters, including the development of a DOT-specific index, do not appear practicable. In the Preamble to the final rule for Part 26, the Department announced that it was not ready at that time to decide the issue of retirement assets. We are still evaluating this matter.

The NPRM also requested comments on whether the third exemption that is currently a part of the Part 23 PNW definition should be retained in the definition, deleted altogether, modified, or replaced with a different but more workable provision aimed to achieve a similar objective. This third exemption is an exemption from the PNW calculation for “other assets that the individual can document as necessary to obtain financing or a franchise agreement for the initiation or expansion of his or her ACDBE firm (or have in fact been encumbered to support existing financing for the individual's ACDBE business), to a maximum of $3 million.” The NPRM summarized the background and rationale for the third exemption, which was added in the 2005 ACDBE rule (see 70 FR 14497-14499 (March 22, 2005)) to respond to concerns of commenters that a PNW standard of $750,000 could inhibit opportunities for business owners to enter the concessions field and expand existing businesses. The Department's decision to establish the third exemption was also made in order to preserve the underlying standard PNW for both the Part 23 and Part 26 programs while responding to comments that a higher standard could be justified in some cases in the ACDBE context. The Department also noted in the NPRM that it is aware that the $3 million exemption from PNW for assets used as collateral for a loan has been difficult to implement, and we asked for comments on how to improve the definition of this exemption so that if retained, the exemption could be implemented more effectively.

Three commenters supported retaining the third exemption, and one commenter opposed it. An association noted that the uniqueness of the ACDBE industry required that ACDBEs have the ability to maintain capital to finance growth, development and expansion. One commenter opposed the exemption because the commenter believed it could be used as a tool to hide assets. This commenter was also concerned that the practice of an ACDBE using its personal property as collateral was not parallel to non-ACDBE business practices. Another commenter said the definition was unclear and that implementation required clarification since there was inconsistent application by UCPs. This commenter noted that the number of applicants using the third exemption was minimal and questioned whether there was a need to retain it. Although we did not receive specific suggestions for improvement, most commenters on this issue desired more guidance.

Because of the very limited number of responses the Department received to its request for comment on this issue, the FAA engaged a consultant to gather additional information on the subject. (A copy of the consultant's report has been placed in the docket.) The consultant contacted all certifying agencies in the DOT database, ultimately receiving responses from 20 agencies which, among them, had received 16 requests for use of the third exemption over the time the provision had been in effect. Thirteen requests were granted (three of which were approved after appeals to the Departmental Office of Civil Rights). Three requests were denied. There were differences among these agencies in terms of the documentation that they required, and most thought that there was a lack of clarity in the Department's requirement that called for additional guidance and training. Some of the ACDBE firms interviewed said that uncertainty about the application of the provision would deter them from seeking to use the third exemption. The ACDBEs interviewed saw value in the provision, but agreed that further clarification and guidance were needed.

Current evidence indicates that the third exemption is not used frequently, and, when it is, it often appears to be the subject of considerable uncertainty and confusion on the part of ACDBEs and certifying agencies alike. It may be subject to misuse. We believe that further consideration is necessary to determine whether the provision should be retained, modified, or deleted. Further study, including gathering more in-depth information about how the provision has been used to date, would be helpful in making this determination.

However, we recognize that deciding what modifications in the provision, if any, would be needed to clarify the provision, or developing additional guidance to clarify the existing provision, are likely to take a good deal of time. Moreover, this rule's inflationary adjustment of the underlying PNW cap to $1.32 million, which maintains the real dollar value of the previous $750,000 cap, may have the effect of mitigating what the Department saw, in 2005, as the need for adopting a provision of this kind. On the other hand, it is possible, given the comments of some program participants, that a provision of this kind can have continuing utility, especially with further clarification, guidance, and training.

For these reasons, the Department has decided neither to continue the existing provision in effect nor to delete it. Rather, the Department is suspending the effectiveness of the provision until further notice. It is important to note that this suspension of the third exemption is prospective, not retroactive. This means that, where a firm applies for ACDBE certification or an existing firm obtains financing, a loan, or a franchise agreement after the effective date of this rule change, the third exemption will not apply. In such cases, the only exemptions from the PNW calculation will be the equity the disadvantaged owner of a firm has in his or her primary personal residence and the individual's ownership interest in the ACDBE firm in question.

However, in cases where a recipient or certifying agency has already calculated a firm owner's PNW, based on the third exemption based on financing, a loan, or a franchise agreement obtained before the effective date of this change, that calculation will then be allowed to stand. This includes situations in which an original calculation of PNW including the third exemption was made in the context of a certification that is later reviewed. Of course, as the owner pays down a loan, the amount of the owner's assets supporting that loan, and thus the assets that can be exempted from the PNW calculation, will decline with the loan balance. In all cases involving the application of the third exemption, the FAA retains the discretion to examine documents to ensure that the third exemption is being used properly.

Meanwhile, the Department will continue to evaluate this issue and seek additional input from stakeholders before deciding whether ultimately to remove, modify, or replace the third exemption. The Department will also consider what guidance may be helpful in helping recipients to use the third exemption, or a modification of it, if and when its effectiveness is reinstated.

The NPRM proposed to adopt in § 23.29 the change that was made in § 26.37 concerning enhanced monitoring of the actual performance of work by DBEs. The NPRM explained that airports would be responsible for reviewing documents and actual on-site performance to ensure that ACDBEs were actually performing the work committed to them during the concession award process, and to certify that they have done so to the FAA. All comments received on this issue were in favor of increased monitoring. An association commenter suggested that the Department and FAA provide guidance on practices that airports might use to monitor effectively the work of ACDBEs, given available resources.

The Department has adopted the proposed change for enhanced monitoring in § 23.29. The FAA also plans to make available to all sponsors a compilation of best practices in monitoring DBE and ACDBE programs. This includes monitoring the work of ACDBEs as a product of the post award compliance reviews that it conducts of airport recipients' DBE and ACDBE programs, and a review of documents obtained from other sources. The FAA plans to develop such a compilation and post the results on its Web site.

The NPRM also asked for comment on the provision in § 23.45(i) concerning the requirement to submit an adjustment to a recipient's overall goal to the FAA if a new concession opportunity estimated to be $200,000 or more in estimated average annual gross revenues arose at a time that fell between normal submission dates for overall goals. Section 23.45(i) currently requires the recipient to submit its adjustment at least six months before executing the concession agreement for the new concession opportunity. The NPRM asked whether this provision should be retained or changed. Both airport recipient commenters (a large hub and a small hub) and an association commenter objected to the six-month submission requirement to the FAA. All asserted that the six-month submission would impose an undue burden on airport recipients, as it would create long and unacceptable lead times for executing new concession agreements that could result in funding problems for the concessionaire. The small hub airport recipient commenter recommended instead, that FAA require only a one to two month submission time, whereas the large hub airport recipient commenter believed that it was unnecessary to submit an adjustment at all since existing procedures for developing a three-year overall goal accommodate the identification of projected new opportunities.

The Department believes that many airport recipients may still require an adjustment to their overall goal when it has one or more new concession opportunities that, for whatever reason, were not projected in their three-year plan. Since these opportunities may be significant and may offer ACDBE opportunities, airports are required to conduct an analysis to determine ACDBE availability and whether their overall goal should be adjusted. The reasons for the current requirement for sponsors to submit an adjusted goal at least six-months before executing the concession agreement were to encourage the sponsor to obtain approval from the FAA prior to the issuance of a new concession opportunity that may offer ACDBE opportunities and to provide the FAA a reasonable amount of time to review the airport's submission. In response to the concerns expressed by the two airport sponsors and the association commenter, the Department is making two changes. In place of requiring an adjusted goal submission at least six months before executing the concession agreement, the Department will require that an adjusted goal be submitted to the FAA no later than 90 days prior to the sponsor's issuance of the solicitation. These two changes, the trigger event and the change in the submission deadline to the FAA, should help a sponsor obtain FAA's prior approval of its adjusted overall goal and include any ACDBE participation in the new concession opportunity consistent with the sponsor's approved ACDBE goal. FAA anticipates that it can complete its review within 45 days of receiving the sponsor's adjusted overall goal submission, assuming FAA has received all necessary information and any follow-up clarifications from the sponsor in a timely manner.

The NPRM proposed to revise § 23.57 to make its accountability provisions parallel to those of the recently amended § 26.47(c). The rationale for doing so is the same as for Part 26. The NPRM requested comments on whether any further modifications of the language of this provision would be useful for purposes of the ACDBE program. Two commenters supported the accountability provision, while two commenters opposed it. Opponents of the accountability provision believed that the inability of the recipient to meet the overall goal was often the result of factors that were beyond their control. One small hub airport commenter said that revenue generation was not in the control of the airport and that its experience was that the concessionaire often did not meet its ACDBE goal, but had to show its good faith efforts instead. Another commenter said there were events and fluctuations, such as shifts in airline traffic, which were beyond the control of the operator and could impact achievement. This commenter added that there may not be new opportunities available to make up for shortfalls in the overall goal achievement. Another commenter who opposed the provision said it would produce an undue burden for airport recipients. The commenter said that it already had a process that worked to correct goal shortfalls. Two commenters suggested that the threshold for shortfall be clearly defined. The airport recipient commenters were concerned about being placed in a “non-compliant” status. Due to the seriousness of being considered “non-compliant,” one commenter suggested that recipients should be given the opportunity to make corrections before a non-compliance determination is made by the FAA. Another commenter suggested that it simply submit a report as part of its annual accomplishment report that would allow for a fuller explanation of why it was unable to meet its overall goals, rather than be judged “non-complaint”. One commenter suggested that the regulation list acceptable corrective actions and that recipients be allowed to modify their overall goal if the analysis supported the modification.

We agree that achievement of concession goals may vary over time, in part because concession receipts are driven by events that are beyond an airport's control. Factors of this kind may increase or decrease ACDBE achievements, compared to earlier projections. We do not believe, however, that these or other factors or any other factors should override the obligation of airport recipients to examine their concessions program in good faith and to explain and attempt to correct for circumstances or policies that may lead to shortfalls in meeting overall ACDBE goals. This examination, for example, may lead to a recommendation to take advantage of contract changes to negotiate for increased ACDBE participation that may not have been contemplated before, to discuss with ACDBEs and other concessionaires potential new opportunities, or to plan for future ACDBE participation through an extensive and comprehensive outreach program. When shortfalls can rationally be attributed specifically to factors beyond an airport's control, the airport would still explain it shortfall by reference to such factors. A requirement to report the analysis and corrective action called for under § 23.57(b)(3) to the FAA is imposed only on the CORE 30 airports, 1 or other airports as designated by the FAA, in order to limit information collection burdens on other airports.

As we explained in the preamble to the final rule for Part 26, the accountability mechanism is designed to promote transparency and accountability, and it is not the same as a finding of non-compliance. An airport recipient would only be in non-compliance if it refuses to make an accountability assessment when it falls below its overall goal. We also addressed the issue of administrative burden in the previously mentioned preamble. We do not believe that any work needed to meet this requirement is “undue,” because the steps of an accountability review for recipients who fail to meet their overall goal should be a regular part of their program review when a key business objective is not met. Therefore, we are retaining the proposed accountability provision.

Under the current DOT rule, if the airport concessions firm's annual gross receipts average over the preceding three fiscal years exceed $52,470,000, then it is not considered a small business eligible to be certified as an ACDBE. This final rule makes an inflationary adjustment to the size standards for eligibility as an ACDBE. This adjustment compensates for the rise in the general level of prices over time from the first quarter of calendar year 2009 through the fourth quarter of calendar year 2011. It should be emphasized that this action does not increase the size standard for ACDBES in real dollar terms. It simply maintains the status quo, adjusting to 2011 dollars.

In order to make an inflation adjustment to the gross receipts figures, the Department of Transportation uses a Department of Commerce price index. The Department of Commerce's Bureau of Economic Analysis prepares constant dollar estimates of state and local government purchases of goods and services by deflating current dollar estimates by suitable price indices. 2 These indices include purchases of durable and non-durable goods, and other services. Using these price deflators enables the Department to adjust dollar figures for past years' inflation. Given the nature of the Department's ACDBE program, adjusting the gross receipts cap in the same manner in which inflation adjustments are made to the costs of state and local government purchases of goods and services is simple, accurate, and fair.

The inflation rate on purchases by state and local governments for the current year is calculated by dividing the price deflator for the fourth quarter of calendar year 2011 (123.622) by calendar year 2009's first quarter price deflator (114.971). The result of the calculation is 1.0752, which represents an inflation rate of 1.075% from the first quarter of calendar year 2009. Multiplying the $52,470,000 figure for small business enterprises by 1.0752 equals $ 56,415,744, which will be rounded off to the nearest $10,000, or $56,420,000.

Therefore, under this final rule, if a firm's gross receipts, averaged over the firm's previous three fiscal years, exceeds $56,420,000, then it exceeds the airport concessions small business size limit contained in § 23.33.

Under the existing rule, car rental companies are not eligible to participate in the ACDBE program if their average gross receipts over the three previous fiscal years exceed $69,970,000. This final rule adjusts the size standard for car rental companies to reflect the effects of inflation on the real dollar value.

The inflation rate on purchases by state and local governments for 2011 is calculated by dividing the price deflator for the fourth quarter of calendar year 2011 (123.622) by calendar year 2009's first quarter price deflator (114.971). The result of the calculation is 1.0752, which represents an inflation rate of 1.075% from the first quarter of calendar year 2009. Multiplying the $69,970,000 figure for car rental companies by 1.0752 equals $75,231,744, which will be rounded off to the nearest $10,000, or $75,230,000.

Therefore, under this final rule, if a car rental company's gross receipts, averaged over the company's previous three fiscal years, exceeds $75,230,000, then it exceeds the airport concessions car rental company size limit contained in § 23.33.

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds that they are impracticable, unnecessary, or contrary to the public interest. The Department finds that notice and comment for the portion of the rule at § 23.33 relating to inflationary adjustment of size limits for ACDBE eligibility is unnecessary and contrary to the public interest because it relates only to ministerial updates of business size standards to account for inflation, which does not change the standards in real dollar terms. These updates will assist entities attempting to be part of the Department's ACDBE program and should not be unnecessarily delayed. Accordingly, the Department finds good cause under 5 U.S.C. 553(b) to waive notice and opportunity for public comment. Other provisions of the final rule were preceded by an opportunity for notice and comment.

In addition, under the Administrative Procedure Act (5 U.S.C. 553(d)), an agency may make a final rule effective immediately upon publication, as distinct from the normal 30 days following publication, if it relieves a restriction or otherwise for good cause. The Department is making the amendments to §§ 23.3 and 23.35 effective immediately. The amendment to § 23.3 suspends prospectively, until further notice, the “third exemption” from the definition of personal net worth. Failure to make this suspension effective immediately would create a clear incentive for potential applicants to hurry their applications to recipients in order to “beat the clock.” The Department has good cause to make the change effective immediately to prevent this foreseeable result of the normal 30-day delay in the effective date of a final rule provision.

The amendment to § 23.35 harmonizes the personal net worth criterion of the ACDBE (49 CFR part 23) with that of the DBE rule (49 CFR part 26), which the Department adjusted for inflation in 2011. Both will now be $1.32 million. This action relieves a restriction on the personal net worth that may be held by an ACDBE owner, which previously had been limited to $750,000. The Department has good cause for making this change effective upon publication because failing to do would expose otherwise eligible firms to the denial of ACDBE certification on the basis of an about-to-change personal net worth criterion, potentially causing these firms to lose business opportunities. In addition, it makes sense to have this provision go into effect at the same time as the suspension of the third exemption.

This is a non-significant regulation for purposes of Executive Orders 12866 13422 and the Department of Transportation's Regulatory Policies and Procedures. The provisions in the rule involve administrative modifications to several provisions of a long-existing and well-established program, designed to improve the program's implementation and to harmonize these provisions with parallel provisions in the January 2011 amendments to 49 CFR part 26, the Department's DBE rule for financial assistance programs, which was itself a non-significant rulemaking. These portions of the rule do not alter the direction of the program, make major policy changes, or impose significant new costs or burdens.

One provision of the rule concerns a ministerial adjustment for inflation of a small business size standard that does not change the standard in real dollar terms. This provision will not impose burdens on any regulated parties. In addition, this provision would not create inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required for the rule.

A number of provisions of the rule reduce small business burdens or increase opportunities for small businesses. The personal net worth change would allow some small businesses to remain in the ACDBE program for a longer period of time. Small airport recipients would not be required to prepare or transmit reports concerning the reasons for overall goal shortfalls and corrective action steps to be taken as stated in § 23.57. Only a limited number of large airports would have to file these reports. These provisions of the rule do not make major policy changes that would cause recipients to expend significant resources on program modifications. With regard to the provision on inflationary adjustment of ACDBE size limits, we have evaluated the effects of this action on small entities and have determined that the only effect of this portion of the rule on small entities is to allow some small businesses to continue to participate in the ACDBE program by adjusting for inflation. For these reasons, the Department certifies that the rule does not have a significant economic effect on a substantial number of small entities.

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 the Order and have determined that it does not have significant implications for Federalism, since it merely makes administrative modifications to an existing program, and updates the dollar limits and size limits to define small businesses for the Department's ACDBE program. It does not change the relationship between the Department and State or local governments, preempt State law or State regulation, affect the States' ability to discharge traditional State governmental functions, or impose substantial direct compliance costs on those governments.

Since this rule pertains to a nondiscrimination requirement and affects only Federal financial assistance programs, the Unfunded Mandates Act does not apply.

As required by the Paperwork Reduction Act of 1995, DOT has submitted the Information Collection Requests (ICRs) below to the Office of Management and Budget (OMB). Before OMB decides whether to approve these proposed collections of information and issue a control number, the public must be provided 30 days to comment. Organizations and individuals desiring to submit comments on the collections of information in this rule should direct them to the Office of Management and Budget, Attention: Desk Officer for the Office of the Secretary of Transportation, Office of Information and Regulatory Affairs, Washington, DC 20503. OMB is required to make a decision concerning the collection of information requirements contained in this rule between 30 and 60 days after publication of this document in the Federal Register . The Department's NPRM included the requisite PRA information. OMB did not submit comments to the rulemaking docket. As provided in 5 CFR 1320.11(h), the Department will submit relevant material to OMB in order to receive an OMB control number for the information collections. The Department will publish a Federal Register notice concerning the assignment of a control number when that occurs.

We will respond to any OMB or public comments on the information collection requirements contained in this rule. The Department will not impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required.

For the information of interested persons we estimate that the total incremental annual burden hours for the information collection requirements in this rule is 13,101 hours.

The following is the incremental collection requirement in this rule:

Each recipient would certify that it had conducted post-award monitoring of contracts which would be counted for ACDBE credit to ensure that ACDBEs had done the work for which credit was claimed. The certification is for the purpose of ensuring accountability for contract monitoring which the regulation already requires.

Respondents: 301 (i.e., airports with covered concessions).

Frequency: 1,311 non-car rental contracts to ACDBEs; 691 car rental concession contracts to ACDBEs, for a total of 2,002, or an average of 6.7 ACDBE contracts per airport.

Estimated Burden per Response: 1/2 hour.

Estimated Total Annual Burden: 1,001 hours.

If a recipient failed to meet its overall goal in a given year, it would have to determine the reason for its failure and establish corrective steps. Of the 301 airports covered by this rule, 30 of the largest recipients would transmit this analysis to DOT if their overall goal was not achieved; smaller recipients would perform the analysis but would not be required to submit it to DOT. We estimate that about half of the recipients (150) would be subject to this requirement in a given year, and 20 of the 30 largest airports would have to submit their reports to the FAA in a given year.

Respondents: 150.

Estimated Average Burden per Response: 80 hours + 5 additional hours for recipients sending report to DOT. Total number of recipients sending report to DOT: 20.

Estimated Total Annual Burden: 12,100 hours.

For the reasons set forth in the preamble, the Department of Transportation amends 49 CFR part 23 as follows:

I. Public Participation and Comments

If you would like to participate in this rulemaking, you may submit 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 (FMCSA-2012-0119), indicate the specific section of this direct final rule to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online, or by fax, mail or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that the Agency can contact you if it has questions regarding your submission. As a reminder, FMCSA will only consider adverse comments as defined in 49 CFR 389.39(b) and explained below.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Final Rule” and insert “FMCSA-2012-0119” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8½ by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Docket Management Facility, please enclose a stamped, self-addressed postcard or envelope.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “FMCSA-2012-0119” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. If you do not have access to the Internet, you may also view the docket online by visiting 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).

FMCSA publishes this direct final rule under 49 CFR 389.39 because the Agency determined that the rule is a routine and non-controversial amendment to 49 CFR part 375. This rule clarifies that certain independent delivery services are not household goods motor carriers, removes an obsolete provision requiring household goods motor carriers to post notices relating to acceptance of collect telephone calls, clarifies the Agency's requirement that re-negotiated estimates contain detailed descriptions of the goods or services that gave rise to the re-negotiation, and requires household goods motor carriers that relinquish possession of goods to permanent storage to do so in the shipper's name. If no adverse comments, or notices of intent to submit an adverse comment, are received by July 20, 2012, this rule will become effective as stated in the DATES section. In that case, approximately 30 days before the effective date, FMCSA will publish a document in the Federal Register stating that no adverse comments were received and confirming that this rule will become effective as scheduled. However, if the Agency receives any adverse comments or notices of intent to submit an adverse comment, FMCSA will publish a document in the Federal Register announcing the withdrawal of all or part of this direct final rule. If FMCSA decides to proceed with a rulemaking following receipt of any adverse comments, the Agency will publish a separate notice of proposed rulemaking (NPRM) and provide a new opportunity for comment.

A comment is considered “adverse” if the comment explains why this rule or a part of this rule would be inappropriate, including a challenge to its underlying premise or approach, or would be ineffective or unacceptable without a change.

The Secretary of Transportation's (Secretary) general jurisdiction to establish regulations over transportation of property by motor carrier is found at 49 U.S.C. 13501. Household goods motor carriers are a subset of property motor carriers and are required by 49 U.S.C. 13902 to register with FMCSA as household goods motor carriers.

This rulemaking is based on the statutory provisions cited above and on the authority Congress granted to the Secretary to regulate the operations of household goods motor carriers in the ICC Termination Act of 1995 (Pub. L. 104-88, 109 Stat. 803, Dec. 29, 1995) and in the Household Goods Mover Oversight Enforcement and Reform Act of 2005, Title IV, Subtitle B of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144, Aug. 10, 2005).

The Secretary has delegated these various authorities to the FMCSA Administrator (49 CFR 1.73(a)). This rulemaking only applies to household goods motor carriers that provide for-hire transportation in interstate or foreign commerce.

FMCSA updates the household goods motor carrier regulations at 49 CFR part 375 to eliminate an obsolete requirement, remove uncertainty, and reduce a regulatory burden on household goods motor carriers.

FMCSA amends the definition of “Household goods motor carrier” in § 375.103 to clarify that motor carriers that provide delivery services transporting furniture, appliances or other furnishings between a factory or a store and an individual's household are not household goods motor carriers for the purposes of 49 CFR part 375. Currently, Agency regulations define a household goods carrier as a motor carrier that transports household goods and provides some or all of the following services: (1) Binding and nonbinding estimates, (2) inventorying, (3) protective packing and unpacking of individual items at personal residences, and (4) loading and unloading at personal residences (49 U.S.C. 13102(12); 49 CFR 375.103). FMCSA does not currently consider delivery services that load and/or provide protective packing of household goods at a factory or store and then unload and/or unpack at an individual's household to fall within this definition. Regardless, the Agency has received a number of requests for clarification. In addition, the Agency believes that some motor carriers providing this type of delivery service have obtained household goods operating authority registration because they mistakenly believed it was an Agency requirement. As a result, these carriers may have incurred unnecessary expenses to establish and maintain household goods operating authority. This change definitively establishes that these types of motor carriers are not household goods motor carriers, so long as they only transport household goods between a factory or retailer and an individual's household.

Section 375.209 currently requires household goods motor carriers to establish and maintain a procedure for responding to complaints and inquiries from individual shippers. Paragraph (b) requires the procedure to include four items. FMCSA removes the third requirement which directs household goods motor carriers to include a statement of who must pay for complaint and inquiry telephone calls. This requirement was originally adopted to require household goods motor carriers to indicate whether they would accept collect calls from shippers. This reference is outdated and no longer necessary. Most motor carriers and shippers conduct business using a combination of Internet, email or mobile telephone communications that have rendered this requirement obsolete.

Section 375.403(a)(6) provides that if a shipper requests that a household goods carrier transport goods or perform services in excess of those previously identified in a binding estimate and the carrier services the shipment, the carrier has one of three options before loading the shipment: (i) Reaffirm the binding estimate; (ii) negotiate a revised written binding estimate listing the additional goods and services; or (iii) convert the original estimate to a written non-binding estimate, if the shipper agrees. FMCSA amends § 375.403(a)(6)(ii) to clarify that if the parties negotiate a revised written binding estimate, the additional goods or services must be accurately listed, in detail. Although FMCSA currently interprets § 375.403(a)(6)(ii) to require a detailed listing of the additional goods or services, this change will resolve any ambiguity as to the motor carrier's obligation under this section.

Similarly, § 375.405(b)(7) provides that if a shipper requests that a household goods carrier transport goods or perform services in excess of those identified in a non-binding estimate and the carrier services the shipment, then the carrier has one of two options before loading the shipment: (i) reaffirm the non-binding estimate or (ii) negotiate a revised written non-binding estimate listing the additional goods and services. FMCSA amends § 375.405(b)(7)(ii) to clarify that if the parties negotiate a revised non-binding estimate, the additional goods or services must be accurately listed, in detail. As it does with binding estimates, FMCSA currently interprets § 375.405(b)(7)(ii) to require a detailed listing of additional goods or services. Regardless, this change will resolve any ambiguity as to the motor carrier's obligation when it re-negotiates a non-binding estimate under this section.

FMCSA amends § 375.609 by adding a new paragraph (h) requiring that when a carrier places goods into permanent storage, the storage arrangements must be made in the individual shipper's name and the carrier must provide the shipper's contact information to the warehouse. FMCSA regulations provide that once a shipper's goods are placed in permanent storage, the motor carrier's liability ends and the individual shipper is subject to the rules, regulations and charges of the warehouseman (49 CFR 375.609(b)(4)). This change will facilitate transfer of the goods to the individual shipper from the warehouseman, after the motor carrier is no longer in possession of the goods.

This action does not meet the criteria for a “significant regulatory action,” either as specified in Executive Order 12866 as supplemented by Executive Order 13563 (76 FR 3821, January 18, 2011), or within the meaning of the DOT regulatory policies and procedures (44 FR 1103, February 26, 1979). The estimated economic costs of the rule do not exceed the $100 million annual threshold nor does the Agency expect the rule to have substantial Congressional or public interest. Therefore, this rule has not been formally reviewed by the Office of Management and Budget. No expenditures are required of the affected population because this rule reaffirms or clarifies existing Agency interpretations, removes uncertainty and reduces a regulatory burden.

Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not required to prepare a final regulatory flexibility analysis under 5 U.S.C. 604(a) for this final rule because the agency has not issued an NPRM prior to this action.

A rule has federalism implications if the rule 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 the States. FMCSA analyzed this rule under E.O. 13132 and have determined that it does not have federalism implications.

FMCSA is not required to prepare an assessment under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531, et seq., evaluating a discretionary regulatory action because the Agency has not issued an NPRM prior to this action.

This final 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.

FMCSA analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agency determined that this rule will not create an environmental risk to health or safety that may disproportionately affect children.

FMCSA reviewed this final rule in accordance with Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not affect a taking of private property or otherwise have taking implications.

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule does not require the collection of any personally identifiable information.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program. FMCSA has determined this rule will not result in a new or revised Privacy Act System of Records for FMCSA.

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

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

FMCSA analyzed this rule in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ). The Agency has determined under its environmental procedures Order 5610.1, published March 1, 2004 in the Federal Register (69 FR 9680), that this action is categorically excluded (CE) from further environmental documentation under Appendix 2, Paragraph 6(b) and 6(m) of the Order (69 FR 9702). The CE in Paragraph 6(b) applies to the editorial aspects of this rule, and the CE in Paragraph 6(m) relates to regulations implementing procedures applicable to the operations of carriers engaged in the transportation of household goods. In addition, the Agency believes this rule includes no extraordinary circumstances that will have any effect on the quality of the environment. Thus, the action does not require an environmental assessment or an environmental impact statement.

FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq. ), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.

FMCSA has analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use. The Agency has determined that it is not a “significant energy action” under that Executive Order because it is not economically significant and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

For the reasons stated in the preamble, FMCSA amends 49 CFR part 375 in title 49, Code of Federal Regulations, chapter III, subchapter B, as follows:

Federal odometer law, which is largely based on the Motor Vehicle Information and Cost Savings Act of 1972 (Cost Savings Act)  2 and Truth in Mileage Act of 1986, as amended (TIMA), 3 contains a number of provisions to limit odometer fraud and ensure that the buyer of a motor vehicle knows the true mileage of the vehicle. The Cost Savings Act requires the Secretary of Transportation to promulgate regulations requiring the transferor (seller) of a motor vehicle to provide a written statement of the vehicle's mileage registered on the odometer to the transferee (buyer) in connection with the transfer of ownership. This written statement is generally referred to as the odometer disclosure statement. Further, under TIMA, vehicle titles themselves must have a space for the odometer disclosure statement and states are prohibited from licensing vehicles unless a valid odometer disclosure statement on the title is signed and dated by the transferor. Titles must also be printed by a secure process. With respect to leased vehicles, TIMA provides that the regulations promulgated by the Secretary require written mileage disclosures be made by lessees to lessors upon the lessor's transfer of the ownership of the leased vehicle. Lessors must also provide written notice to lessees about odometer disclosure requirements and the penalties for not complying with them. Federal law also contains document retention requirements for odometer disclosure statements.

TIMA's motor vehicle mileage disclosure requirements apply in a State unless the State has alternate requirements approved by the Secretary. The Secretary has delegated administration of the odometer program to NHTSA. Therefore, a State may petition NHTSA for approval of such alternate odometer disclosure requirements.

Seeking to implement an electronic vehicle title transfer system, Florida has petitioned for approval of alternate odometer disclosure requirements. In 2009, NHTSA reviewed certain requirements for alternative state programs and approved the Commonwealth of Virginia's alternate odometer disclosure program. 74 FR 643, Jan. 7, 2009. Florida's program is similar to Virginia's program in some respects and broader in scope than Virginia's in others. Like Virginia's program, the scope of Florida's proposed program does not include transactions involving an out-of-state party. Unlike Virginia's program, Florida's proposed program encompasses transactions involving leased vehicles and odometer disclosures by power of attorney. In addition, Florida's proposed program would use different mechanisms to document mileage than Virginia's.

In its initial determination, NHTSA reviewed the statutory background and set out the agency's tentative view on applicable statutory factors governing whether to grant a state's petition. NHTSA initially determined that Florida's petition regarding proposed alternate disclosure requirements for vehicle transfers involving casual or private sales satisfied Federal odometer law, and that Florida's petition regarding sales involving licensed dealers and sales of leased vehicles did not satisfy Federal odometer law. See 76 FR 48101, Aug. 8, 2011.

After careful consideration of comments, NHTSA has made a final determination, which is set forth below.

NHTSA reviewed the statutory background of Federal odometer law in its consideration and approval of Virginia's petition for alternate odometer disclosure requirements. See 73 FR 35617 and 74 FR 643. The statutory background of the Cost Savings Act and TIMA and the purposes behind TIMA, as they relate to odometer disclosure, other than in the transfer of leased vehicles and vehicles subject to liens where a power of attorney is used in the disclosure, are discussed at length in NHTSA's final determination granting Virginia's petition. 74 FR 647-8. A brief summary of the statutory background of Federal odometer law and the purposes of TIMA, including odometer disclosure requirements for leased vehicles follows.

In 1972, Congress enacted the Cost Savings Act, among other things, to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of buyers with respect to the sale of motor vehicles having altered or reset odometers. See Sec. 401, Pub. L. 92-513, 86 Stat. 961-63. The Cost Savings Act required that under regulations to be published by the Secretary, the transferor of a motor vehicle provide a written vehicle mileage disclosure to the transferee. It also prohibited odometer tampering, and provided for enforcement. See id. Sec. 408. 4 In general, the purpose for the disclosure was to assist buyers to know the true mileage of a motor vehicle.

A major shortcoming of the odometer provisions of the Cost Savings Act was their failure to require that the odometer disclosure statement be on the vehicle's title. In a number of states, the disclosures were on separate documents that could be easily altered or discarded and did not travel with the title. See 74 FR 644. Consequently, the disclosure statements did not necessarily deter odometer fraud employing altered documents, discarded titles, and title washing. Id.

Another significant shortcoming involved leased vehicles. The lessor is considered the transferor of the vehicle in leased vehicle sales. Titles to leased vehicles are often transferred without the lessor obtaining possession of the vehicle. Lessors without direct access to their vehicles had to rely solely on lessees to provide actual mileage information. However, lessees had no obligation to provide actual mileage information to lessors upon vehicle transfer. This environment facilitated roll backs of odometers.

Congress enacted TIMA in 1986 to address the Cost Savings Act's shortcomings. It amended the Cost Savings Act by adding section 408(d) to prohibit states from licensing vehicles unless the new owner (transferee) submitted a title from the seller (transferor) containing the seller's signed and dated vehicle mileage statement. See Sec. 2, Pub. L. 99-579, 100 Stat. 3309; 74 FR 644. TIMA also prohibits the licensing of vehicles for use in any state, unless the title issued to the transferee is printed using a secure printing process or other secure process, indicates the vehicle mileage at the time of transfer, and contains additional space for a subsequent mileage disclosure by the transferee when it is sold again. Id.

TIMA also added section 408(e) to the Cost Savings Act requiring that the Secretary issue regulations regarding odometer disclosures for leased vehicles. 5 The regulations promulgated by the Secretary were to require written mileage disclosures by lessees to lessors upon the lessor's transfer of the ownership of the leased vehicle. The regulations were to require lessors to provide written notice to lessees about the odometer disclosure requirements and the penalties for not complying with them. Also, the regulations were to provide document retention requirements for odometer disclosure statements: Lessors had to retain disclosures made by lessees for at least four years following the date that the lessor transfers that vehicle. 6 Id.

TIMA added a provision to the Cost Savings Act allowing states to have alternate odometer disclosure requirements with the approval of the Secretary of Transportation. Section 408(f) of the Cost Savings Act, as amended, states that the odometer disclosure requirements of subsections (d) and (e)(1) shall apply in a state unless the state has in effect alternate motor vehicle mileage disclosure requirements approved by the Secretary. Section 408(f)(2) further states that the Secretary shall approve alternate motor vehicle mileage disclosure requirements submitted by a state unless the Secretary determines that such requirements are not consistent with the purpose of the disclosure required by subsection (d) or (e), as the case may be.

In 1988, Congress amended section 408(d)(1) of the Cost Savings Act to permit the use of a secure power of attorney for purposes of odometer mileage disclosure in circumstances where the title was held by a lienholder, if allowed by state law. Sec. 401, Pub. L. 100-561, 102 Stat. 2817. Congress required NHTSA to issue a rule ensuring that disclosures be made on the power of attorney document of the actual mileage at the time of transfer and that the mileage be restated exactly by the person exercising power of attorney on the title in the space therefor. Id. The rule, consistent with the purposes of the Act and the need to facilitate enforcement thereof, was to prescribe that the power of attorney form be issued by the state to the transferee using a secure process, as provided for titles, and provide for retention of a copy with the original submitted back to the State. Id. In 1989, NHTSA implemented the 1988 statutory amendments by promulgating amendments to the odometer disclosure regulations, providing that a transferor may give a secure power of attorney to a transferee for the purpose of mileage disclosure in two circumstances—when the transferor's title is physically held by a lienholder or when the title is lost. In either instance, use of a power of attorney document for mileage disclosure is permissible only if otherwise permitted by state law. 7

The snapper-grouper fishery of the South Atlantic, which includes the lesser amberjack, almaco jack, and banded rudderfish complex, is managed under the Snapper-Grouper FMP. The Snapper-Grouper FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The 2006 reauthorization of the Magnuson-Stevens Act implemented new requirements that established ACLs and AMs to end overfishing and prevent overfishing from occurring. AMs are management controls to prevent ACLs from being exceeded, and to correct or mitigate overages of the ACL if they occur.

In part, the final rule for the Comprehensive ACL Amendment specified ACLs for species in the Snapper-Grouper FMP that are not undergoing overfishing, including the lesser amberjack, almaco jack, and banded rudderfish complex, and AMs if these ACLs are reached or exceeded. Implementation of ACLs and AMs for these species is intended to prevent overfishing from occurring in the future, while maintaining catch levels consistent with achieving optimum yield for the resources (77 FR 15916, March 16, 2010).

The combined commercial ACL for the lesser amberjack, almaco jack, and banded rudderfish complex, implemented through the Comprehensive ACL Amendment, is 193,999 lb (87,996 kg), round weight. In accordance with regulations at 50 CFR 622.49(b)(12)(i)(A), if the combined complex ACL is reached or projected to be reached, the Assistant Administrator, NMFS (AA) will file notification with the Office of the Federal Register to close the commercial sector for this complex for the remainder of the fishing year. Analysis of landings data from the NMFS Southeast Fisheries Science Center indicate that the commercial sector for this complex is projected to reach the ACL on July 2, 2012. Therefore, this temporary rule implements an AM to close the commercial sector for the lesser amberjack, almaco jack, and banded rudderfish complex in the South Atlantic, effective 12:01 a.m., local time July 2, 2012.

During the closure, all sale or purchase of lesser amberjack, almaco jack, and banded rudderfish is prohibited, and harvest or possession of these species in or from the South Atlantic EEZ is limited to the bag and possession limit, as specified at 50 CFR 622.39(d)(1)(viii) and (d)(2). This bag and possession limit applies in the South Atlantic on board a vessel for which a valid Federal commercial permit for South Atlantic snapper-grouper has been issued, without regard to where such species were harvested, i.e., in state or Federal waters. The commercial sector for the lesser amberjack, almaco jack, and banded rudderfish complex will reopen on January 1, 2013, the beginning of the 2013 commercial fishing season.

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of the lesser amberjack, almaco jack, and banded rudderfish complex, a component of the South Atlantic snapper-grouper fishery, and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.49(b)(1)(ii) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule. Such procedures are unnecessary because the AMs established by the Comprehensive ACL Amendment and located at 50 CFR 622.49(b)(12)(i)(A) have already been subject to notice and comment and authorize the AA to file a notification with the Office of the Federal Register to close the commercial sector for this complex for the remainder of the fishing year, if commercial landings for lesser amberjack, almaco jack, and banded rudderfish, combined, as estimated by the SRD, reach or are projected to reach their combined commercial ACL. All that remains is to notify the public of the closure of this complex for the remainder of the 2012 fishing year. Additionally, there is a need to immediately implement the closure for this complex for the 2012 fishing year, to prevent further commercial harvest and prevent the ACL from being exceeded, which will protect the lesser amberjack, almaco jack, and banded rudderfish resources in the South Atlantic. Also, providing prior notice and opportunity for public comment on this action would be contrary to the public interest because many of those affected by the closure need as much time as possible to adjust business plans to account for the reduced commercial fishing season.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).