The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-57, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.

The national plant protection organization (NPPO) of Spain has requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow avocados from continental Spain to be imported into the United States, including Hawaii and U.S. territories.

As part of our evaluation of Spain's request, we prepared a pest risk assessment (PRA), titled “Importation of Fresh Avocado, Persea americana Miller, from Continental Spain into the United States, Including Hawaii and U.S. Territories” (November 2011). The PRA evaluated the risks associated with the importation of avocados into the United States from Spain. Copies of the PRA may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT or viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

The PRA identifies one pest of quarantine significance present in continental Spain that could be introduced into the United States through the importation of avocados. That pest is Ceratitis capitata (Wiedemann), the Mediterranean fruit fly (Medfly).

APHIS has determined that measures beyond standard port-of-entry inspection are required to mitigate the risks posed by this plant pest. To recommend specific measures to mitigate those risks, we prepared a risk management document (RMD). Copies of the RMD may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT or viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

Based on the recommendations of the RMD, we are proposing to allow the importation of avocados from continental Spain into the United States only if they are produced in accordance with a systems approach. We would allow importation of untreated Hass avocados based on our finding  1 that Hass avocados on the tree are not a host to Medfly. We would allow importation of other varieties of avocado if they are treated for Medfly. The systems approach we are proposing would require:

• Registration, monitoring, and oversight of places of production;

• Grove sanitation;

• Harvesting requirements for safeguarding and identification of the fruit;

• Packinghouse requirements for safeguarding and identification of the fruit;

• Inspection by the NPPO of Spain for Medfly; and

• Cold treatment for avocado varieties other than Hass.

Additionally, all avocados from Spain would also be required to be accompanied by a phytosanitary certificate issued by the NPPO of Spain. The phytosanitary certificate accompanying Hass variety avocados would have to contain an additional declaration stating that the avocados were grown in an approved place of production and the consignment has been inspected and found free of C. capitata. The phytosanitary certificate accompanying non-Hass avocados would have to contain an additional declaration stating that the avocados were grown in an approved place of production and the consignment has been inspected and found free of C. capitata, and, if treated prior to export, that the consignment has been treated for C. capitata in accordance with 7 CFR part 305.

We are proposing to add the systems approach to the regulations in a new § 319.56-58 governing the importation of avocados from continental Spain into the United States. The mitigation measures in the proposed systems approach are discussed in greater detail below.

Paragraph (a) of § 319.56-58 would set out general requirements for the NPPO of Spain and for growers and packers producing avocados for export to the United States.

Paragraph (a)(1) would require the NPPO of Spain to provide a workplan to APHIS that details the activities that the NPPO of Spain will, subject to APHIS' approval of the workplan, carry out to meet the requirements of proposed § 319.56-58. As described in a notice we published on May 10, 2006, in the Federal Register (71 FR 27221-27224, Docket No. APHIS-2005-0085), a bilateral workplan is an agreement between APHIS' Plant Protection and Quarantine program, officials of the NPPO of a foreign government, and, when necessary, foreign commercial entities that specifies in detail the phytosanitary measures that will comply with our regulations governing the import or export of a specific commodity. Bilateral workplans apply only to the signatory parties and establish detailed procedures and guidance for the day-to-day operations of specific import/export programs. Bilateral workplans also establish how specific phytosanitary issues are dealt with in the exporting country and make clear who is responsible for dealing with those issues. The implementation of a systems approach typically requires a bilateral workplan to be developed.

Paragraph (a)(1) would also state that the NPPO of Spain must establish a trust fund in accordance with § 319.56-6. Section 319.56-6 of the regulations sets forth provisions for establishing trust fund agreements to cover costs incurred by APHIS when APHIS personnel must be physically present in an exporting country or region to facilitate exports. The systems approach may require APHIS personnel to monitor treatments if they are conducted in Spain.

Paragraph (a)(2) would require the avocados to be grown at places of production in continental Spain that are registered with the NPPO of Spain and that meet the requirements for grove sanitation that are discussed later in this document. Places of production would be limited to continental Spain due to additional quarantine pests that may occur in the Canary Islands or Balaeric Islands.

Paragraph (a)(3) would require the avocados to be packed for export to the United States in packinghouses that are registered with the NPPO of Spain and that meet the packinghouse requirements for fruit origin, pest exclusion, cleaning, safeguarding, and identification that are described later in this document.

Paragraph (a)(4) would state that avocados from continental Spain may be imported in commercial consignments only. Produce grown commercially is less likely to be infested with plant pests than noncommercial consignments. Noncommercial consignments are more prone to infestations because the commodity is often ripe to overripe and is often grown with little or no pest control. Commercial consignments, as defined in § 319.56-2, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer.

Commercially produced avocados are cleaned as part of the packing process. This practice would help to mitigate the risk associated with external pests that would be dislodged by cleaning. In addition, the industry practice of culling damaged fruit would help to ensure that avocados exported from Spain are free of quarantine pests in general.

Paragraph (a)(5) would require that avocados other than Hass variety from continental Spain must be treated for C. capitata in accordance with 7 CFR part 305. This treatment could occur prior to export to the United States, or upon arrival  2 prior to release. This requirement would mitigate the greater vulnerability of non-Hass avocados to attack by C. capitata. The regulations in part 305 set out standards and schedules for treatments  3 required in 7 CFR parts 301, 318, and 319 to prevent the introduction or dissemination of plant pests or noxious weeds into or through the United States through the importation or movement of fruits, vegetables, and other articles. Therefore, we are proposing to refer to 7 CFR part 305 for an approved treatment for C. capitata for avocados from continental Spain.

The systems approach we are proposing includes monitoring and oversight requirements in paragraph (b) of proposed § 319.56-58 to ensure that the required phytosanitary measures are properly implemented throughout the process of growing and packing of avocados for export to the United States.

Paragraph (b)(1) would require the NPPO of Spain to visit and inspect registered places of production monthly, starting at least 2 months before harvest and continuing until the end of harvest, to verify that the growers are complying with the requirements for grove sanitation that are discussed later in this document and follow pest control guidelines, when necessary, to reduce quarantine pest populations.

Under paragraph (b)(2), in addition to conducting fruit inspections at the packinghouses, the NPPO of Spain would be required to monitor packinghouse operations to verify that the packinghouses are complying with the packinghouse requirements for fruit origin, pest exclusion, cleaning, safeguarding, and identification that are described later in this document.

Under paragraph (b)(3), if the NPPO of Spain finds that a place of production or a packinghouse is not complying with the proposed regulations, no fruit from the place of production or packinghouse would be eligible for export to the United States until APHIS and the NPPO of Spain conduct an investigation and appropriate remedial actions have been implemented.

Paragraph (b)(4) would require the NPPO of Spain to retain all forms and documents related to export program activities in groves and packinghouses for at least 1 year and, as requested, provide them to APHIS for review.

Under paragraph (c) of proposed § 319.56-58, avocado fruit that has fallen from the trees would have to be removed from each place of production at least once every 7 days, starting 2 months before harvest and continuing to the end of harvest. This procedure would reduce the amount of material in the groves that could serve as potential host material for C. capitata.

Avocado fruit of any variety that has fallen from avocado trees to the ground may be damaged and thus more susceptible to infestation by C. capitata, and even the normally resistant Hass variety may become infested under these circumstances. Therefore, proposed paragraph (c) would not allow fallen avocado fruit to be included in field containers of fruit brought to the packinghouse to be packed for export.

Paragraph (d) of proposed § 319.56-58 sets out requirements for harvesting. Harvested avocados would have to be placed in field cartons or containers that are marked with the official registration number of the place of production. The place of production where the avocados were grown would have to remain identifiable when the fruit leaves the grove, at the packinghouse, and throughout the export process. These requirements would ensure that APHIS and the NPPO of Spain could identify the place of production where the avocados were produced if inspectors find Medflies in the fruit either before export or at the port of entry.

We would require the fruit to be moved to a registered packinghouse within 3 hours of harvest or to be protected from fruit fly infestation until moved. The fruit would have to be safeguarded by an insect-proof screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. These requirements would prevent the fruit from being infested by fruit flies between harvest and packing.

We are proposing several requirements for fruit origin and packinghouse activities, which would be contained in paragraph (e) of proposed § 319.56-58.

Paragraph (e)(1) would require registered packinghouses to accept only avocados that are from registered places of production and that are produced in accordance with the requirements of the systems approach during the time they are in use for packing avocados for export to the United States.

Paragraph (e)(2) would require avocados to be packed within 24 hours of harvest in an insect-exclusionary packinghouse. All openings to the outside of the packinghouse would have to be covered by screening with openings of not more than 1.6 mm or by some other barrier that prevents pests from entering. Screening with openings of not more than 1.6 mm excludes fruit flies. The packinghouse would have to have double doors at the entrance to the facility and at the interior entrance to the area where the avocados are packed. These proposed requirements are designed to exclude fruit flies from the packinghouse.

Paragraph (e)(3) would require all avocados to be cleaned of all plant debris before packing. This procedure would ensure that the fruit alone is exported to the United States; other parts of the avocado tree may harbor pests other than the quarantine pest C. capitata, and the cleaning process helps to remove them.

Paragraph (e)(4) would state that cartons or boxes in which avocados are packed would be required to be labeled with a lot number that provides information to identify the orchard where the fruit was grown and the packinghouse where the fruit was packed. The labeling would have to be large enough to clearly display the required information and be located on the side of cartons to facilitate inspection by APHIS.

Paragraph (e)(5) would require avocados to be packed in insect-proof packaging, or covered with insect-proof mesh or a plastic tarpaulin, for transport to the United States, to prevent fruit fly infestation after the fruit is packed. These safeguards would have to remain intact until arrival in the United States.

Paragraph (e)(6) would require shipping documents accompanying consignments of avocados from continental Spain that are exported to the United States to include the official registration number of the place of production at which the avocados were grown and to identify the packing shed or sheds in which the fruit was processed and packed. This identification would have to be maintained until the fruit is released for entry into the United States. These requirements would ensure that APHIS and the NPPO of Spain could identify the packinghouse at which the fruit was packed if inspectors find C. capitata in the fruit either before export or at the port of entry.

To ensure that the mitigations required in the systems approach are effective at producing fruit free of quarantine pests, paragraph (f) of proposed § 319.56-58 would require inspectors from the NPPO of Spain to inspect a biometric sample from each place of production at a rate to be determined by APHIS. The inspectors would have to visually inspect the fruit and a portion of the fruit would be cut open to inspect for internal stages of C. capitata. If C. capitata is detected in this inspection, the place of production where the infested avocados were grown would immediately be suspended from the export program until an investigation has been conducted by APHIS and the NPPO of Spain and appropriate mitigations have been implemented.

To certify that the avocados from continental Spain have been grown and packed in accordance with the requirements of proposed § 319.56-58, proposed paragraph (g) would require each consignment of avocados imported from Spain into the United States to be accompanied by a phytosanitary certificate issued by the NPPO of Spain. The phytosanitary certificate accompanying Hass variety avocados would have to contain an additional declaration stating that the avocados are Hass variety and were grown in an approved place of production and the consignment has been inspected and found free of C. capitata. The phytosanitary certificate accompanying non-Hass avocados would have to contain an additional declaration stating that the avocados were grown in an approved place of production and the consignment has been inspected and found free of C. capitata and, if treated prior to export, that the consignment has been treated for C. capitata in accordance with 7 CFR part 305.

This proposed rule has been has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is set forth below.

The NPPO of Spain has requested that APHIS authorize market access for commercial shipments of fresh avocados into the United States for domestic consumption. APHIS is proposing to grant this request if Spain produces the avocados in accordance with a systems approach intended to prevent the introduction of quarantine pests.

In 2009, the United States was the world's third largest avocado producer, after Mexico and Chile; the United States accounted for about 7 percent of global production, while Mexico and Chile accounted for 32 percent and 9 percent, respectively. U.S. commercial production of avocado occurs in three States. California accounts for about 90 percent of U.S. production, followed by Florida with about 9 percent, and Hawaii with less than 1 percent. In 2010, U.S. utilized production of avocado totaled about 135,500 metric tons (MT), only one-half of the 271,000 MT produced in 2009, and indicative of the significant variability in yield from year to year.

In the last decade, U.S. per capita consumption of avocado has risen significantly, from 1 kilogram in 2000 to 1.86 kilograms in 2010, representing an annual growth rate of about 6.4 percent. Although the United States is a major producer of avocado, it is also the largest import market (since 2002) and has been a net importer since the late 1980s. During this time, the gap between U.S. imports and U.S. exports has widened substantially. The average annual value of U.S. avocado imports, 2008-2010, was nearly $622 million, compared to average annual exports valued at less than $16 million.

Spanish avocado producers expect to export to the United States about 260 MT of fresh avocado annually, an amount equivalent to 0.15 percent of U.S. production, 0.07 percent of U.S. net imports (imports minus exports), and 0.05 percent of U.S. supply (production plus net imports), based on 2008-2010 average annual U.S. production and trade quantities.

Entities that may be directly affected by the proposed rule are U.S. importers and producers of avocado. Avocado importers are classified in the North American Industry Classification System (NAICS) under Fresh Fruit and Vegetable Merchant Wholesalers (NAICS 424480). Avocado producers are classified under Other Noncitrus Fruit Farming (NAICS 111339). The Small Business Administration (SBA) has established guidelines for determining which establishments are to be considered small. A firm primarily engaged in fresh fruit and vegetable wholesaling is considered small if it employs not more than 100 persons. A firm primarily engaged in noncitrus fruit farming is considered small if it has annual sales of not more than $750,000.

In 2007, nearly 95 percent of fruit and vegetable wholesale establishments (4,207 of 4,437 businesses) that operated the entire year were small by the SBA's small-entity threshold of not more than 100 employees. That same year, nearly 93 percent of farms that sold fruits, tree nuts, or berries (104,424 of 112,690 operations) had annual sales of less than $500,000, well below the SBA's small-entity threshold of $750,000. The subset of these farms that comprise the industry Other Noncitrus Fruit Farming numbered 23,641, and can be assumed to be also primarily composed of small entities. Of these Other Noncitrus Fruit Farming establishments, there were 8,245 avocado farms in 2007, also presumed to be principally small operations.

While most entities that may be affected by the proposed rule are small, any effects would be insignificant because of the small quantity of avocado expected to be imported from continental Spain.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This proposed rule would allow avocados to be imported into the United States from continental Spain. If this proposed rule is adopted, State and local laws and regulations regarding avocados imported under this rule would be preempted while the fruit is in foreign commerce. Fresh avocados are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2012-0002. Please send a copy of your comments to: (1) Docket No. APHIS-2012-0002, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

We are proposing to amend the fruits and vegetables regulations to allow the importation of avocados from continental Spain into the United States, including Hawaii and U.S. territories. As a condition of entry, avocados from continental Spain would have to be produced in accordance with a systems approach that would include requirements for importation in commercial consignments; registration and monitoring of places of production and packinghouses; grove sanitation; and inspection for quarantine pests by the NPPO of Spain. Implementation of this proposed rule would require the submission of documents such as phytosanitary certificates, trust fund agreements, workplans, records for recordkeeping, and production site and packinghouse registration and inspection forms. This proposed rule will also require the labeling of boxes or cartons.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.029503 hours per response.

Respondents: Producers and importers of avocados and the NPPO of Spain.

Estimated annual number of respondents: 28.

Estimated annual number of responses per respondent: 515.6785.

Estimated annual number of responses: 14,439.

Estimated total annual burden on respondents: 426 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

Accordingly, we propose to amend 7 CFR part 319 as follows:

The regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-57, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.

Currently, the regulations prohibit imports of fresh apricot fruit ( Prunus armeniaca Marshall) from continental Spain (excluding the Balearic Islands and Canary Islands) due to the fruit serving as a likely pathway for four quarantine pests. The Animal and Plant Health Inspection Service (APHIS) received a request from the national plant protection organization (NPPO) of Spain to allow fresh apricots from continental Spain to be imported into the United States subject to a systems approach. As part of our evaluation of Spain's request, we prepared a pest risk assessment (PRA) and a risk management document (RMD). Copies of the PRA and the RMD may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT or viewed on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

The PRA, titled “Importation of Fresh Apricot, Prunus armeniaca (L.) fruit, from Continental Spain into the United States, including Hawaii and U.S. Territories” (March 2010), evaluates the risks associated with the importation of fresh apricot fruit into the United States from continental Spain. The RMD draws upon the findings of the PRA to determine the phytosanitary measures necessary to ensure the safe importation into the United States of apricots from continental Spain.

The PRA identifies four quarantine pests that could follow the pathway of consignments of fresh apricots imported from continental Spain into the United States:

• The Mediterranean fruit fly (Medfly), Ceratitis capitata Wiedemann,

• The plum fruit moth, Cydia funebrana (Treitschke),

• Leaf scorch, Apiognomonia erythrostoma (Pers.), a fungus, and

• Brown rot, Monilinia fructigena Honey, a fungus.

A quarantine pest is defined in § 319.56-2 as a pest of potential economic importance to the area endangered thereby and not yet present there, or present but not widely distributed and being officially controlled. Plant pest risk potentials associated with the importation of fresh apricots from continental Spain into the United States were derived by estimating the consequences and likelihood of introduction of each quarantine pest into the United States and ranking the risk potential as High, Medium, or Low. The PRA determined that three of these four quarantine pests—brown rot, Medfly, and plum fruit moth—pose a high risk of following the pathway of fresh apricots from continental Spain into the United States and having negative effects on U.S. agriculture. Leaf scorch was rated as having a medium risk potential.

Based on the conclusions of the PRA and RMD, we are proposing to allow the importation of fresh apricots from continental Spain  1 into the United States subject to a systems approach. Under a systems approach, a set of phytosanitary conditions, at least two of which have an independent effect in mitigating the pest risk associated with the movement of commodities, is specified, whereby fruits and vegetables may be imported into the United States from countries that are not free of certain plant pests.

We are proposing to add the systems approach for apricots from continental Spain to the regulations in a new § 319.56-58. The specific mitigation measures required in the systems approach for each quarantine pest are discussed below, as well as in the risk management document.

General requirements for importing apricots from continental Spain into the United States would be listed in proposed § 319.56-58(a). The NPPO of Spain would be required to provide a bilateral workplan to APHIS that details the activities of the systems approach, including inspections, monitoring, trapping, and surveying, that the NPPO of Spain will carry out to meet the proposed requirements. APHIS would have to approve the workplan and would be directly involved with the NPPO of Spain in monitoring and auditing the systems approach implementation. A bilateral workplan is an agreement between APHIS' Plant Protection and Quarantine program, officials of the NPPO of a foreign government, and, when necessary, foreign commercial entities, that specifies in detail the phytosanitary measures that will comply with our regulations governing the import or export of a specific commodity. Bilateral workplans apply only to the signatory parties and establish detailed procedures and guidance for the day-to-day operations of specific import/export programs. Bilateral workplans also establish how specific phytosanitary issues are dealt with in the exporting country and make clear who is responsible for dealing with those issues. The implementation of a systems approach typically requires a bilateral workplan to be developed. The NPPO of Spain would also be required to enter into a trust fund agreement with APHIS in accordance with § 319.56-6 to cover our monitoring and auditing costs.

All places of production and packinghouses in continental Spain that participate in the program to export apricots to the United States must be registered with and approved by the NPPO of Spain and meet the requirements of proposed § 319.56-58. The place of production where the apricots were grown would have to be identifiable when the fruit leaves the grove, at the packinghouse where the fruit is packed, and throughout the export process. Boxes containing apricot fruit would have to be marked with the identity and origin of the fruit. Safeguarding in accordance with the regulations in proposed § 319.56-58(h) would have to be maintained at all times during the movement of the apricot fruit to the United States and remain intact upon arrival in the United States.

The regulations in proposed § 319.56-58(b) would require that fresh apricots from continental Spain would be allowed to be imported into the United States in commercial consignments only. Commercial consignments, as defined in § 319.56-2, are consignments that an inspector identifies as having been imported for sale and distribution. Produce grown commercially is less likely to be infested with plant pests than noncommercial consignments. Noncommercial consignments are more prone to infestations because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, and is often grown with little or no pest control.

Under proposed § 319.56-58(c), if APHIS approved the workplan, the NPPO of Spain would have to begin conducting inspections and monitoring places of production and packinghouse operations to verify that they comply with the requirements of proposed § 319.56-58. The NPPO of Spain would be required to visit and inspect the places of production monthly, starting 2 months (60 days) before harvest and continuing until the end of the shipping season, to verify that growers are complying with the requirements of proposed § 319.56-58 and following pest control guidelines, when necessary, to reduce quarantine pest populations. The NPPO would also have to monitor packinghouses to verify that the packinghouses are complying with proposed § 319.56-58. Under paragraph (c)(3) of proposed § 319.56-58, if the NPPO of Spain were to find that a place of production or a packinghouse did not comply with the regulations in proposed § 319.56-58, fruit from that place of production or packinghouse would not be eligible for export to the United States until APHIS and the NPPO of Spain conducted an investigation and implemented appropriate remedial actions.

Any personnel conducting trapping and pest surveys required by the systems approach would have to be hired, trained, and supervised by the NPPO of Spain. The NPPO would have to certify that exporting places of production have fruit fly and moth trapping programs and follow control guidelines, when necessary, to reduce regulated pest populations. APHIS would monitor and inspect the places of production as necessary.

Proposed § 319.56-58(c)(4) would also require that the NPPO of Spain retain all forms and documents related to export program activities in places of production and packinghouses for at least 1 year and, upon request, provide them to APHIS for review.

Proposed § 319.56-58(d) would require all fruit that has fallen from the trees of each place of production to be removed from the grove and destroyed weekly. This procedure would reduce the amount of material in the groves that could serve as potential host material for insect pests.

During the growing season, the NPPO of Spain would be required in accordance with proposed § 319.56-58(e) to conduct inspections at intervals specified in the workplan in places of production for signs of the fungi A. erythrostoma and M. fructigena until harvest is completed. Infected leaves would have to be removed from places of production to reduce the inoculum potential. Upon detection of either A. erythrostoma or M. fructigena, the NPPO of Spain would be required to notify APHIS, which may prohibit the importation into the United States of apricots from the production site for the season.

Under proposed § 319.56-58(f), APHIS would require the NPPO of Spain to use one of the following two mitigation measures to address the risk potential posed by C. funebrana:

Pest-Free Area: Under this mitigation measure, apricots would have to originate from an area designated as free of C. funebrana in accordance with § 319.56-5 for the establishment of pest-free areas. Paragraph (a) of § 319.56-5 states that determinations of pest-free areas be made in accordance with International Standards for Phytosanitary Measures (ISPM) No. 4, which is incorporated by reference in § 300.5. ISPM No. 4 sets out three main criteria for recognition of a pest-free area:

• Systems to establish freedom;

• Phytosanitary measures to maintain freedom; and

• Checks to verify freedom has been maintained.

Paragraph (b) of § 319.56-5 requires that APHIS approve the survey protocol used to determine and maintain pest-free status, as well as protocols for actions to be taken upon detection of a pest. It also indicates that pest-free areas are subject to audit by APHIS to verify their status.

Area of Low Pest Prevalence and Pest Management: Under this mitigation measure, each registered place of production would have to be visited and inspected by the NPPO of Spain for signs of C. funebrana and pheromone trapping for C. funebrana would have to be conducted. The purpose of the inspection and trapping is to demonstrate that the places of production have a low prevalence of C. funebrana.

Specific inspection and trapping requirements would be included in the bilateral workplan and would be adjusted as necessary to ensure that inspection and trapping are effective. Consistent with the recommendations of the RMD, the bilateral workplan would initially require samples of 20 fruits per tree from 50 trees within every 4 hectares to be visually inspected by the NPPO of Spain every 7 days during the growing season. During the harvest period, samples of 40 fruits per tree from 50 trees within every 4 hectares would have to be visually inspected by the NPPO of Spain every 7 days until harvest is completed. The NPPO of Spain would also have to sample and inspect a quantity of fruit specified in the workplan. In addition, the bilateral workplan would initially require places of production to be trapped for C. funebrana with APHIS-approved pheromone traps at a density of 2 traps per 4 hectares, with a minimum of 2 traps per place of production. Traps would have to be checked every 7 days from fruit formation until completion of harvest. If the trap counts are greater than 10 moths per trap per week, or more than 1 percent of the fruits sampled in a week are damaged or found to have any life stage of C. funebrana, remedial measures would have to be implemented. The NPPO of Spain would have to keep records of the placement of traps, trap visits, trap counts, and treatments for each registered place of production.

Under proposed § 319.56-58(g), the places of production would be required to be trapped for Medfly to demonstrate that there is a low prevalence of Medfly in those places of production. Similar to C. funebrana, specific trapping requirements for Medfly would be included in the bilateral workplan and would be adjusted as necessary to ensure that trapping is effective. Consistent with the recommendations of the RMD, the bilateral workplan would initially require trapping with 1 APHIS-approved trap per 12 hectares, with a minimum of 1 trap per place of production, beginning May 1 of each year and remaining in place and in service until harvesting is completed. Any time that trap counts are greater than 0.5 flies per trap per day, remedial measures would need to be implemented and approved by APHIS and the NPPO of Spain. The NPPO of Spain would have to keep records of the placement of traps, trap visits, trap counts, and treatments for each registered place of production.

All fresh apricots for export from continental Spain to the United States would have to undergo a cold treatment for Medfly in accordance with the requirements for conducting phytosanitary treatment in 7 CFR part 305.

We are proposing to require two phytosanitary mitigation measures for Medfly because high larval populations of Medfly in fruit can overwhelm the effectiveness of cold treatment. The trapping and field mitigation measures for Medfly would maintain populations at acceptably low prevalence levels and ensure that cold treatment is effective.

Specific post-harvest and packinghouse requirements, listed in paragraphs (h) and (i) of proposed § 319.56-58, are intended to prevent insect infestation of harvested fruit during processing, packing, and shipment. Apricots would have to be safeguarded by a pest-proof screen, plastic tarpaulin, or some other pest-proof barrier while in transit to the packinghouse and while awaiting packing. They would have to be packed and sealed within 24 hours of harvest into pest-proof cartons or containers or covered with pest-proof mesh or a plastic tarpaulin for transport to the United States. These safeguards would be required to remain intact until arrival of the consignment in the United States.

Packing of apricots for export to the United States would have to be conducted within a packinghouse registered and approved by the NPPO of Spain. Packinghouses in which apricots are packed for export to the United States would have to be able to exclude quarantine pests. All openings to the outside of the packinghouse would have to be covered by screening with openings of not more than 1.6 mm or by some other barrier that prevents pests from entering. The 1.6 mm maximum screening size is adequate to exclude the insect pests of quarantine significance named earlier in this document. The packinghouse would have to be equipped with double self-closing doors at the entrance to the packinghouse and at the interior entrance to the area where fruit is packed to prevent inadvertent introduction of pests into the packinghouse. During the time the packinghouse is used to pack and export apricot fruit to the United States, the packinghouse may only accept fruit from places of production registered and approved by the NPPO of Spain.

Under proposed § 319.56-58(j), a biometric sample of apricots, jointly agreed upon by APHIS and the NPPO of Spain, would be required to be inspected in Spain by the NPPO following post-harvest processing. The sample would have to be visually inspected for the quarantine pests A. erythrostoma, C. funebrana, and M. fructigena, and a portion of the fruit would be cut open to inspect for the internal pest C. capitata. If any of these quarantine pests are found, the entire consignment of apricots would be prohibited from import into the United States.

Fruit presented for inspection at a U.S. port of entry would have to be identified in the shipping documents accompanying each consignment of fruit that specify the place of production in which the fruit was produced and the packinghouse in which the fruit was processed. This identification would have to be maintained with the consignment until the fruit is released for entry into the United States.

Under proposed § 319.56-58(k), each consignment of apricot fruit would have to be accompanied by a phytosanitary certificate issued by the NPPO of Spain that states that the fruit has been treated for C. capitata in accordance with 7 CFR part 305 and includes an additional declaration stating that the fruit in the consignment was inspected and found free from A. erythrostoma, C. capitata, C. funebrana, and M. fructigena.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

This proposed rule would allow the importation into the United States of fresh apricots from continental Spain, subject to a systems approach.

The economic analysis examines impacts for U.S. small entities of a rule that would allow fresh apricot imports from continental Spain. Spain is expected to export at most 10 standard shipping containers of fresh apricot per year to the United States. Each container can hold approximately 18 metric tons (MT), thus fresh apricot imports from Spain may total as much as 180 MT annually. This amount is equivalent to about 1 percent of current U.S. consumption. With U.S. fresh apricot exports four times the quantity imported, and the amount expected to be imported from Spain very small in comparison to current U.S. consumption, any market effects of such a relatively small change in supply would be minor.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This proposed rule would allow fresh apricots to be imported into the United States from continental Spain, subject to a systems approach. If this proposed rule is adopted, State and local laws and regulations regarding fresh apricots imported under this rule would be preempted while the fruit is in foreign commerce. Fresh apricots are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2011-0132. Please send a copy of your comments to: (1) Docket No. APHIS-2011-0132, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

APHIS is proposing to amend the fruits and vegetables regulations to allow the importation of fresh apricots from continental Spain into the United States subject to a systems approach. As a condition of entry, apricots from Spain would have to be produced in accordance with a systems approach that would include requirements for importation in commercial consignments; a limited harvest period; registration of production and packinghouses; grove sanitation, and pest control practices; treatment with surface disinfectant; and inspection for quarantine pests by the NPPO of Spain.

Apricots from continental Spain would also be required to be accompanied by a phytosanitary certificate with an additional declaration stating that the apricots have been inspected and found to be free of quarantine pests and were grown and packed in accordance with the proposed requirements. This action would allow for the importation of apricots from continental Spain into the United States while continuing to provide protection against the introduction of quarantine pests.

Allowing the importation of apricots to be imported into the United States from Spain will require information collection activities, including phytosanitary certificates, production site and packinghouse registration, recordkeeping, a workplan, and a trust fund agreement.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 6.4827 hours per response.

Respondents: The NPPO of Spain and producers and importers of apricots.

Estimated number of respondents: 23.

Estimated number of responses per respondent: 1.2608.

Estimated annual number of responses: 29.

Estimated total annual burden on respondents: 188 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

Accordingly, we propose to amend 7 CFR part 319 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-1319; Directorate Identifier 2012-NM-179-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On June 6, 2012, we issued AD 2012-12-15, Amendment 39-17095 (77 FR 42964, July 23, 2012), for all The Boeing Company Model 757 airplanes. That AD superseded AD 2008-10-11, Amendment 39-15517 (73 FR 25974, May 8, 2008). AD 2012-12-15 requires revising the maintenance program by incorporating new and revised fuel tank system limitations in the Airworthiness Limitations (AWLs) section of the Instructions for Continued Airworthiness to satisfy Special Federal Aviation Regulation No. 88 requirements; and requires the initial inspection of certain repetitive AWL inspections to phase-in those inspections, and repair if necessary. That AD resulted from a report that an AWL required by a previous AD must be revised. We issued that AD to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

Since we issued AD 2012-12-15, Amendment 39-17095 (77 FR 42964, July 23, 2012), we have found errors in paragraph references in the existing AD. The second sentence in paragraph (h)(1) of the existing AD refers to paragraph (n) of that AD, which is a compliance time for AWL No. 28-AWL-26. The correct reference should be to paragraph (l) of that AD, which is a compliance time for AWL No. 28-AWL-03. The last sentence in paragraph (l) of the existing AD refers to paragraph (h)(2) of that AD, which is a definition of a detailed inspection. The correct reference should be to paragraph (h)(1)(ii) of that AD, which references a specific AWL and compliance time.

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

This proposed AD would retain all requirements of AD 2012-12-15, Amendment 39-17095 (77 FR 42964, July 23, 2012). This proposed AD would revise certain paragraph references.

We estimate that this proposed AD affects 639 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

The new requirements of this proposed AD add no additional economic burden.

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

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

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

For the reasons discussed above, I certify that the proposed regulation:

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-1320; Directorate Identifier 2012-NM-095-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

During overhaul of the MLG, pivot joint components have been found with cracks or heat damage. There have been 11 such findings on Model 767-400ER series airplanes, and 42 findings on Model 767-200, -300, and -300F series airplanes. The damage was found on Model 767-400ER series airplanes as early as 8 years from delivery, and on Model 767-200, -300, and -300F series airplanes as early as 7 years from delivery. Heat damage and cracks were found at the pivot joint location, caused by the truck pitching motion during normal airplane operations. High levels of heat in the pivot joint can result in damage and cracks in the pivot pin, truck beam lugs, and inner cylinder lugs. These conditions, if not corrected, could result in fracture of the pivot joint components and consequent MLG collapse.

We reviewed Boeing Service Bulletin 767-32A0227, Revision 1, dated September 13, 2012. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for Docket No. FAA-2012-1320.

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

This proposed AD would require accomplishing the actions specified in the service information described previously.

The phrase “related investigative actions” might be used in this proposed AD. “Related investigative actions” are follow-on actions that (1) are related to the primary actions, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

In addition, the phrase “corrective actions” might be used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

We estimate that this proposed AD affects 420 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0614; Directorate Identifier 2007-NM-351-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We issued an NPRM to amend 14 CFR part 39 to include an AD that would apply to all The Boeing Company Model 737-300, -400, and -500 series airplanes. That NPRM published in the Federal Register on June 6, 2008 (73 FR 32258). That NPRM proposed to require repetitive operational tests of the engine fuel suction feed of the fuel system, and other related testing if necessary. That NPRM proposed that those actions be done according to a method approved by the FAA.

Since we issued the previous NPRM (73 FR 32258, June 6, 2008), we have received comments from operators indicating a high level of difficulty performing the actions in the previous NPRM during maintenance operations.

We reviewed Boeing Alert Service Bulletin 737-28A1307, dated May 14, 2012. This service information describes procedures for repetitive operational tests of the engine fuel suction feed of the fuel system, and corrective actions if necessary. The corrective actions include isolating the cause of any leakage and repairing the leak.

We gave the public the opportunity to comment on the previous NPRM (73 FR 32258, June 6, 2008). The following presents the comments received on the previous NPRM and the FAA's response to each comment.

Boeing asked that we revise the compliance time in paragraph (f) of the previous NPRM (73 FR 32258, June 6, 2008) (referred to as paragraph (g) in this supplemental NPRM) to include a calendar time of 3 years for the low-utilization airplanes. Boeing stated that low-utilization airplanes may not meet the 7,500-flight-hour threshold for several years.

We do not agree with the 3-year calendar time. As specified previously, Boeing has issued Alert Service Bulletin 737-28A1307, dated May 14, 2012, which specifies a compliance time of 24 months. Therefore, we have revised paragraph (g) of this supplemental NPRM to include doing the initial test within 7,500 flight hours or 24 months, whichever occurs first. We have also included a repetitive interval of 7,500 flight hours or 24 months, whichever occurs first.

Continental Airlines (CAL), British Airways (BA), KLM Royal Dutch Airlines, and Lufthansa Basis (LBA) asked that we extend the repetitive operational test interval required by paragraph (f) of the previous NPRM (73 FR 32258, June 6, 2008). CAL stated that a re-evaluation of the proposed repetitive interval limit after doing the initial inspection should be done, since its service history has revealed no reported engine flameout events or related operational discrepancies. CAL asked that the repetitive interval be extended to repeating the inspection during a normal maintenance 2C-check or within 8,000 flight cycles, whichever occurs first. LBA stated that the repetitive interval of 7,500 flight hours does not match maintenance planning data (MPD) or maintenance review board (MRB) intervals of every 1 C-check and 4,000 flight hours, and asked for clarification and revision. KLM stated that if an airplane does not pass the operational test, a tank entry is required, which has an impact on the downtime requirements for C-checks. KLM asked that the initial compliance time be extended from within 7,500 flight hours to within 8,000 flight hours or at the next 2 C-check, with the same interval for the repetitive tests. BA stated that the test is already covered in the MPD task with a compliance time of 4,000 flight hours.

We do not agree with the requests to revise the compliance time by extending the flight-hour compliance time or adding maintenance check intervals. The compliance time in the MPD is not required by this supplemental NPRM because we have determined that the 7,500-flight-hour or 24-month interval, whichever occurs first, addresses the identified unsafe condition. In developing an appropriate compliance time for the actions specified in paragraph (g) of this supplemental NPRM (paragraph (f) of the previous NPRM (73 FR 32258, June 6, 2008)), we considered the safety implications and normal maintenance schedules for the timely accomplishment of the specified actions. We have determined that the proposed compliance time will ensure an acceptable level of safety and allow the actions to be done during scheduled maintenance intervals for most affected operators.

However, affected operators may request approval of an alternative method of compliance (AMOC) for an extension of the repetitive operational test interval under the provisions of paragraph (h) of this supplemental NPRM by submitting data substantiating that the change would provide an acceptable level of safety. We have not changed the supplemental NPRM in this regard.

Boeing asked that the related testing language specified in the “Summary,” “FAA's Conclusions,” and “FAA's Determination and Requirements of this Proposed AD” sections of the previous NPRM (73 FR 32258, June 6, 2008) be changed. Boeing stated that it should specify correcting discrepancies before further flight if the engine fails the operational test.

We agree with the request. We have revised the language describing the proposed actions as appropriate throughout this supplemental NPRM. We also have changed paragraph (g) of this supplemental NPRM to specify doing all applicable corrective actions before further flight in accordance with Boeing Alert Service Bulletin 737-28A1307, dated May 14, 2012.

KLM asked that we clarify if the fuel feed manifold air pressure leak check procedure specified in airplane maintenance manual (AMM) 28-22-15 is an alternative to performing the operational test. KLM added that this alternative test is allowed by AMM 28-22-00.

We agree to provide clarification. The manifold leak test (Task 28-22-00-710-801) is not equivalent to the operational test (Task 28-22-00-710-802) for the purposes of this proposed action. The positive internal fuel line pressure applied during the manifold test does not simulate the same conditions encountered during fuel suction feed (i.e., vacuum), and might mask a failure. Therefore, we have not changed the supplemental NPRM in this regard.

BA, LBA, and Air Nippon (ANK) asked that AMM MSG3 Task Card be added to paragraph (f) of the previous NPRM (73 FR 32258, June 6, 2008) as a method of compliance for performing the operational test. BA also asked that the NPRM reference the MPD tasks associated with the check. The commenters stated that the task card is equivalent to AMM Task Card B28-22-00-2B, which is specified in paragraph (f) of the previous NPRM. Boeing asked that the NPRM only include AMM Task Card B28-22-00-2B in paragraph (f) of the previous NPRM, and remove reference to AMM 28-22-00. Boeing stated that the fewer references, the less chance of errors.

We do not agree to add a reference to the task cards and MPD tasks, or to remove the reference to AMM 28-22-00. However, we have revised paragraph (g) of this supplemental NPRM to require accomplishing operational tests and applicable corrective actions in accordance with Boeing Alert Service Bulletin 737-28A1307, dated May 14, 2012.

Boeing asked that we allow using later revisions of the Boeing 737-300/400/500 Task Card B28-22-00-2B, dated July 12, 2006, because the task card date could be revised over time and would require frequent requests for AMOCs. BA asked that we allow for using the AMM and Boeing task cards having Revision July 12, 2006 or later.

We do not agree with the request. Allowing later revisions of service documents in an AD is not allowed by the Office of the Federal Register regulations for approving materials incorporated by reference. Affected operators may, however, request approval to use a later revision of referenced service information as an AMOC in accordance with paragraph (h) of this supplemental NPRM. We have not changed the supplemental NPRM in this regard.

CAL suggested that the Boeing service manuals include a warning identification statement to alert maintenance personnel of the importance of regulatory compliance. CAL did not include any justification for this request.

We agree that a warning statement would serve as direct communication to maintenance personnel that there is an AD associated with certain maintenance actions, but do not find this additional measure necessary to adequately address the unsafe condition. We have made no change to the supplemental NPRM in this regard.

The Costs of Compliance section in the previous NPRM (73 FR 32258, June 6, 2008) has been changed to correct the number of U.S.-registered airplanes affected. The data source used in 2007, which specified a total of 669 airplanes of U.S. registry, did not provide an accurate count; therefore, we have used the current information available to determine that 827 airplanes of U.S. registry are affected by the actions in this supplemental NPRM.

We have clarified the unsafe condition identified in the previous NPRM (73 FR 32258, June 6, 2008) by specifying that the previous NPRM results from two in-service occurrences on Model 737-400 airplanes of total loss of boost pump pressure of the fuel feed system, followed by loss of fuel system suction feed capability on one engine, and in-flight shutdown of the engine.

We are proposing this supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above expand the scope of the previous NPRM (73 FR 32258, June 6, 2008). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.

This supplemental NPRM would revise the previous NPRM (73 FR 32258, June 6, 2008) by proposing to require repetitive operational tests of the engine fuel suction feed of the fuel system, and corrective actions if necessary.

We estimate that this proposed AD would affect 827 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

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

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2013-0031 and Airspace Docket No. 12-AWA-7) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov .

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Nos. FAA-2013-0031 and Airspace Docket No. 12-AWA-7.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov .

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5.00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the Nashville International Airport Class C airspace area by removing a cutout from the Class C surface area that excluded the airspace within a 1.5 NM radius of the former Cornelia Fort Airpark from the Class C surface area. The exclusion was in place to solely accommodate operations at the Airpark, which was located about 4 NM north northwest of Nashville International Airport. The Airpark is now permanently closed and the property sold for non-aviation uses. Since the original purpose of the exclusion no longer exists, the FAA is proposing to remove the words “ * * * excluding that airspace within a 1.5-mile radius of lat. 36°12′00″ N., long. 86°42′10″ W. (in the vicinity of Cornelia Fort Airpark) * * * ” from the Class C airspace description. This would restore the Class C surface area to the standard configuration of a 5 NM radius around Nashville International Airport and would enhance the management of aircraft operations at the airport.

Also, a minor correction would be made to update the geographic coordinates of the Nashville International Airport to reflect the current information in the FAA's aeronautical database. This change would remove “lat. 36°07′31″ N., long. 86°40′35″ W.,” and insert “lat. 36°07′28″ N., long. 86°40′42″ W.” in its place.

Class C airspace areas are published in paragraph 4000 of FAA Order 7400.9W, dated August 8, 2012 and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class C airspace area modification proposed in this document would be published subsequently in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the 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 would modify terminal airspace as required to preserve the safe and efficient flow of air traffic in the Nashville, TN, area.

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

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2012-0922; Airspace Docket No. 12-ASO-38) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov .

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2012-0922; Airspace Docket No. 12-ASO-38.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/ .

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace extending upward from 700 feet above the surface in the West Palm Beach, FL area. New Standard Instrument Approach Procedures have been developed for Palm Beach County Park Airport. Airspace reconfiguration is necessary for the continued safety and management of IFR operations within the West Palm Beach, FL, airspace area. The geographic coordinates for Palm Beach County Park Airport also would be adjusted to coincide with the FAAs aeronautical database.

Class E airspace designations are published in Paragraph 6005 of FAA order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the 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 proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class E airspace in the West Palm Beach, FL, area.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2011-0831; Airspace Docket No. 12-AEA-13) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov .

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2012-0831; Airspace Docket No. 12-AEA-13.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/ .

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, Georgia 30337.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace at Kingston, NY providing the controlled airspace required to support the new RNAV GPS standard instrument approach procedures for Kingston-Ulster Airport. Controlled airspace extending upward from 700 feet above the surface would be created for the safety and management of IFR operations at the airport. The geographic coordinates for Kingston-Ulster Airport also would be adjusted to coincide with the FAAs aeronautical database.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the 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 proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class E airspace at Kingston-Ulster Airport, Kingston, NY.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2012-1219; Airspace Docket No. 12-ASO-43) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov .

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2012-1219; Airspace Docket No. 12-ASO-43.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/ .

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E airspace extending upward from 700 feet above the surface to support new Standard Instrument Approach Procedures developed at Griffin-Spalding County Airport, Griffin, GA. Airspace reconfiguration is necessary due to the decommissioning of the Griffin NDB and cancellation of the NDB approach, and for continued safety and management of IFR operations at the airport.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the 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 proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would amend Class E airspace at Griffin-Spalding County Airport, Griffin, GA.

This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2012-1051; Airspace Docket No. 12-ASO-39) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov .

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2012-1051; Airspace Docket No. 12-ASO-39.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded from and comments submitted through http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/ .

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory circular No. 11-2A, Notice of Proposed Rulemaking distribution System, which describes the application procedure.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Immokalee, FL, providing the controlled airspace required to support the RNAV GPS standard instrument approach procedures for Big Cypress Airfield. Controlled airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations at the airport.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the 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 proposed rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Big Cypress Airfield, Immokalee, FL.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Under the authority of Section 810 of the United States Information and Educational Exchange Act of 1948, as amended, 22 U.S.C. 1475e, and the Independent Offices Appropriations Act of 1952 (IOAA), 31 U.S.C. 9701, and following the guidelines set forth in Office of Management and Budget (OMB) Circular No. A-25, fees for the Exchange Visitor Program (EVP) Services were adopted for the first time in 2000. The Department issued regulations to establish sufficient fees to recover the cost of administrative processing of requests for program designation or redesignation, and certain services for exchange visitor status changes. OMB Circular No. A-25 directs the Agency review of fees and services every two years.

The two fees for the Exchange Visitor Program under review are those set forth in 22 CFR 62.17(b)(1) and (2): the Application Fee for Sponsor Designation or Redesignation and the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits. The Exchange Visitor Program (EVP) provides foreign nationals, utilizing the J-1 Exchange Visitor Visa (J-1 Visa), opportunities to participate in exchange programs in the United States. It is administered and overseen by the Office of Private Sector Exchange in the Bureau of Educational and Cultural Affairs (ECA/EC). ECA/EC is responsible for designating eligible U.S. government agencies and public and private organizations as EVP sponsors. Upon designation, ECA/EC is also responsible for the oversight of the EVP sponsors. ECA/EC is comprised of a Front Office and three supporting offices: The Office of Private Sector Designation, the Office of Exchange Coordination and Compliance, the Office of Private Sector Exchange Program Administration. Three different funding streams fund all of the ECA/EC units administering and overseeing the EVP, including all of the EVP's program administration activities and the ECA/EC personnel conducting those activities.

These funding streams are:

• Application Fee for Sponsor Designation or Redesignation and the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits: The Application Fee is paid by prospective and current EVP sponsors for Designation and Redesignation, respectively. The Administrative Fee is paid by EVP sponsors on behalf of J-1 participants seeking an administrative benefit such as reinstatement or other request related to their current exchange visitor program. Both fees primarily fund the Office of Private Sector Designation labor (salary) and ancillary costs (e.g., staff travel, communications, and utilities). Both fees also fund the Office of Exchange Coordination and Compliance ancillary costs and will fund the ancillary costs of the future Office of Private Sector Exchange Program Administration.

• SEVIS Fees paid by J-1 Visa Applicants and Participants to the U.S. Department of Homeland Security (DHS): These fees, via transfer on a reimbursable basis from DHS to the Department of State, fund the Office of Exchange Coordination and Compliance labor (salary) costs; and, in the future, will fund the Office of Private Sector Exchange Program Administration labor (salary) costs.

• Bureau of Educational and Cultural Affairs (ECA) Budget: Appropriated funds support certain ECA/EC personnel salaries (or portions of salaries) and portions of salaries of Bureau of Education and Cultural Affairs Support Services personnel who assist the administration of the EVP.

The current Application Fee for Sponsor Designation or Redesignation is $2700 and the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits is currently $233 per request. The Department proposes amendment of both fees to: $3,982 (an increase of $1,282) and $367 (an increase of $134), respectively. The proposed increase in the Application and Administrative Fees is primarily attributable to three initiatives related to ongoing or planned process improvements and technology implementations. These initiatives are expected to increase the efficiency and accuracy of the Designation and Redesignation Application review processes and the level of service provided to EVP sponsors by the Office of Private Sector Exchange. Costs assessments were developed by Deloitte Consulting LLP for each initiative and added into the total cost basis that must be recovered by the two EVP fees.

The three initiatives are:

• Development of a Learning Management System (an expansion of the currently existing Local Coordinator Training Certification Module) needed to meet EVP local coordinator training requirements established in new or future EVP regulations.

• Development and implementation of the Designation Processing System, which consists of:

○ Robust electronic content management system for storing and reviewing new and historical sponsor files;

○ Electric file migration of all hard copy sponsor files; and

○ Complaint Management Workflow Module for tracking, managing, and reporting on all complaints and incidents reported to the Department (e.g., serious incidents reported by EVP sponsors and complaints reported by Exchange Visitors and any interested persons on behalf of Exchange Visitors or of a general nature).

• Addition of a new Office of Private Sector Exchange Program Administration in the Office of Private Sector Exchange (ECA/EC) and the addition of four Full-time Equivalent employees (FTEs) in the ECA/EC Front Office, which will increase the ancillary costs factored into the cost basis.

The Department's Bureau of Educational and Cultural Affairs, Office of Private Sector Exchange, designates the U.S. government, academic, and private sector entities to conduct educational and cultural exchange programs pursuant to a broad grant of authority provided by the Mutual Educational and Cultural Exchange Act of 1961, as amended (Fulbright-Hays Act), 22 U.S.C. 2451 et seq.; the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(J); the Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105-277; as well as other statutory enactments, Reorganization Plans and Executive Orders. Under those authorities, over 1,400 sponsor organizations facilitate the entry of more than 300,000 exchange participants each year.

The Fulbright-Hays Act is the primary statutory authority for the Exchange Visitor Program. The purpose of the Act, set forth in Section 101, is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange.” The Act authorizes the President to provide for such exchanges when he considers that it would strengthen international cooperative relations. The language of the Act and its legislative history make it clear that Congress considered international educational and cultural exchanges to be a significant part of the public diplomacy efforts of the President in connection with his Constitutional prerogatives in conducting foreign affairs.

In 2006, the Department examined its current Exchange Visitor Program fee structure (which had been instituted by the former USIA, prior to its merger with the Department) for compliance with applicable laws and policies, and to determine the appropriate level of fees given the expansion of the offices providing services. This analysis was grounded on the guiding principle that fees should be fair and reflect the full cost to perform the service; and that services performed on behalf of distinct, identifiable beneficiaries (versus the public at large) should, to the extent possible, be self-sustaining. As a result of the review, it was determined that additional fee categories and increased fees were required, and the Department published a final rule on November 1, 2007 (72 FR 61800), which became effective December 3, 2007.

The 2007 fee rule identified the program re-designation process as a separate and identifiable service for which the cost of such service should be recouped. This fee (Application Fee) is collected from over 1,400 academic, governmental, and private sector sponsor organizations. This fee also includes the cost of services arising from a program sponsor's requests for amendments to programs, allotment requests, and updates of information, as well as the costs for program compliance, regulatory review and development, outreach, and general program administration. Also established in the 2007 fee rule was the Administrative Fee paid by sponsors on behalf of J-1 foreign national exchange participants for services provided on an individual basis and for the sole benefit of the exchange participant (i.e., requests for exchange visitor status changes of program category, extension beyond maximum duration, requests for reinstatement, requests to update the Student and Exchange Visitor Information System (SEVIS) status, and similar requests). The fees received for these individual services also include an apportioned share of costs for regulatory review and development, outreach, and general program administration.

In 2009, per guidelines set forth in OMB Circular A-25, the Department conducted a biennial review of fees established in 2007. In accordance with the Statement of Federal Finance and Accounting Standards No. 4 (SFFAS 4), the Department used an “activity-based costing” (ABC) approach to develop a sustainable model to align the costs of the program to the specific services performed by Office of Private Sector Exchange's Office of Designation on behalf of program sponsors and other program stakeholders. ABC is a method of identifying the work that is performed, how resources are consumed by that work, and how that work contributes to the production of required outputs. The ABC methodology enabled the development of a bottom-up budget that factored in forecasts for expected demand of program services in the years when the fees are effective and would provide the program with adequate resources to meet that future program demand. Based on this review, the Department established a user application fee of $2,700 for designation or redesignation, and a fee of $233 to be paid by program sponsors on behalf of J-1 foreign national exchange participants requesting individual program services. The Department published a final rule on February 25, 2011 (76 FR 10498), which became effective March 28, 2011.

In 2011, Deloitte Consulting LLP (hereafter referred to as Deloitte) began its fee study as part of the biennial review of the fees charged by the Department, consistent with the guidelines set forth in OMB Circular A-25. In accordance with SFFAS 4, Deloitte used an ABC approach to align the costs of the program to the administration of the Exchange Visitor Program and the associated administrative activities. The methodology and the results of this study are examined in the following sections.

In accordance with the Statement of Federal Finance and Accounting Standards No. 4 (SFFAS 4), Deloitte used an “activity-based costing” (ABC) approach to develop a sustainable model to align the associated costs of the EVP to the specific services performed by the Office of Private Sector Designation on behalf of EVP applicants, sponsors, participants and other program stakeholders. ABC is a method of identifying the work that is performed, how resources are consumed by that work, and how that work contributes to the production of required outputs. This methodology enabled the development of a cost model that factored in forecasts for expected demand of program services in the years when the fees are effective (FY2013 and FY2014) and would provide the program with adequate resources to meet that future program demand.

According to legislative and regulatory guidance, user charges should be based on the full cost to the government of providing the services or things of value. OMB Circular A-25 defines full cost as all direct and indirect costs to any part of the Federal government of providing a good, resource, or service. These costs include, but are not limited to, an appropriate share of:

• Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement.

• Physical overhead, consulting, and other indirect costs including material and supply costs, utilities, insurance, travel, and rents or imputed rents on land, buildings, and equipment.

• Management and supervisory costs.

• Costs of enforcement, collection, research, establishment of standards, and regulation, including any required environmental impact statements.

The generally accepted government accounting practices for managerial cost accounting, published in Federal Accounting Standards Advisory Board (FASAB) Statement of Federal Financial Accounting Standards (SFFAS) No. 4, provide the standards for cost definition, recognition, accumulation and assignment as they relate to the recognition of full cost. These standards have been applied to the determination of what costs to include in or exclude from the Exchange Visitor Program fees.

To obtain data needed for the cost model using the ABC methodology, a Labor Survey was conducted to determine the time spent by the Office of Private Sector Designation personnel on EVP activities. The survey results were taken into account when determining the two fees.

The results of the Labor Survey were analyzed in conjunction with Office of Private Sector Designation salary data (escalated for benefits) to determine the cost basis of activities supporting the EVP. Added to the cost basis were Office of Private Sector Exchange ancillary costs (including the projected ancillary costs of a planned, new third office and four additional FTEs in the ECA/EC Front Office), costs for the development of a new Designation Processing System and a new Learning Management System, and Bureau of Educational and Cultural Affairs and Department of State labor (salary) costs that support the EVP.

The model then assigned direct costs and allocated indirect and General and Administrative (G&A) costs using allocation ratios to isolate direct, indirect, and G&A costs. The sum of direct, indirect and G&A costs for Designation and Redesignation Applications were divided by the projected number of FY 2013 and FY 2014 Designation and Redesignation Applications to determine the Application Fee for Sponsor Designation or Redesignation. To determine the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits, the sum of direct, indirect and G&A costs for Exchange Visitor Activity Counts were divided by the projected number of FY 2013 and FY 2014 Exchange Visitor Activity Counts; i.e., the expected number of benefit applications.

The following section describes the cost model structure driving the proposed fee changes.

In summary, the EVP Cost Accounting Model takes cost data from the GS Schedule Rates, Baseline ECA Budget, Civilian Pay Cost Data, Activity Model Cost Pools, FTE Capacity Calculation, LCC Cost Assessment, DPS Cost Assessment, and Other Cost Pools modules, assigns direct costs or allocates indirect and General and Administrative (G&A) costs using allocation ratios, and then uses the direct, indirect, and G&A cost pools to calculate the two fees for the Fiscal Year (FY) 2013-2014 time frame.

The Cost Accounting Model contains twelve modules described in detail in the following sections. Most modules include an FY 2013 section and an FY 2014 section, given the need to enter separate data for each fiscal year. The modules that only have one tab are Home, GS Schedule Rates, ECA Baseline Budget, FTE Capacity Calculation, LCC Cost Assessment, Designation Processing System, SEVIS & FTE Data, and Final EVP Fees FY 2013-2014. The modules are sequenced to follow the general flow of calculations performed by the model.

The GS Schedule Rates module contains the General Schedule (GS) pay scale figures for FY 2012-FY 2014. The figures for FY 2013 and FY 2014 are based on the 2012 General Schedule pay scale. These figures inform the Civilian Pay Cost Data FY13 and FY14 and the Activity Model Cost Pools FY2013 and FY2014 modules and are used to determine Department labor costs.

The Baseline ECA Budget module contains the actual and projected Bureau of Education and Cultural Affairs (ECA) budget and budget breakdowns for FY 2012-FY 2014. These estimates inform the Other Cost Pools FY 2013 and FY 2014 modules.

This module also calculates the ancillary costs associated with Office of Exchange Coordination and Compliance, Office of Private Sector Exchange Program Administration, and ECA/EC Front Office personnel. The results of this calculation are documented in the Other Cost Pools FY 2013 and FY 2014 tabs in the “Adjustment to Cost” column in the ECA/EC Non-Labor Cost Pool table.

This module pulls Civilian Pay data by General Schedule (GS) Level for ECA/EC/D personnel from the GS Schedule Rates module. The salaries of the personnel are escalated for benefits according to OMB Circular A-76. This calculation is detailed further in the Cost Accounting Model Data Sources section.

This module displays the results of the Labor Survey that was conducted by the 2012 Deloitte Fee Study to determine the time spent by ECA/EC/D personnel performing activities related to the administration of the Exchange Visitor Program. The results are displayed by personnel position in the form of percentages. This data is then multiplied by the escalated salary calculated in the Civilian Pay Cost Data module to create Activity Model Cost Pools to determine the costs associated with the time spent by ECA/EC/D personnel performing activities related to the administration of the Exchange Visitor Program. Finally, this module includes a self-check feature to verify the completeness and accuracy of user entries.

This module displays the calculation the 2012 Deloitte Fee Study performed in order to determine ECA/EC's current staffing needs related to fulfilling its mission of administering and overseeing the EVP.

This module displays the costs of administering the training certifications for EVP sponsors' field staff (regional and/or local coordinators) through the development of an in-house Learning Management System (LMS). The module also contains the total expenditures paid to an external LMS vendor to administer the trainings while the LMS is in development. The results of these calculations are documented in the Other Cost Pools FY 2013 & FY 2014 tabs in the ECA/EC Non-Labor Cost Pool tables.

This module displays the estimated costs of the Designation Processing System and Workflow Module designed to fully automate the designation and redesignation process in order to increase the Office of Private Sector Exchange's efficiency required for sponsor reviews and to eventually integrate with the SEVIS II. The results of this cost estimate are documented in the ECA/EC Non-Labor Cost Pool tables of the Other Cost Pools FY2013 & FY2014 modules.

This module displays other costs associated with the Exchange Visitor Program, including the following:

• Bureau of Educational and Cultural Affairs, Office of Private Sector Exchange (ECA/EC) non-labor costs including costs estimates of the Local Coordinator Training Certifications, Designation Processing System, and the value of the JASZ Technology Call Center Contract (provides call center services for the J-1 Visa Helpline).

• Bureau of Educational and Cultural Affairs (ECA) labor costs.

• Department of State labor costs.

• Department of State non-labor costs.

Not all of the costs outlined above are allocated to the two fees since they support the Bureau of Educational and Cultural Affairs or the entire Department. The 2012 Deloitte Fee Study allocated appropriate portions of these costs to the EVP by FTE ratios. The FTE ratios are calculated from data provided by SEVIS & FTE Data module.

There is only one tab for the SEVIS & FTE Data module. It displays historical SEVIS and FTE data. It includes projected CY 2013 and CY 2014 Designation and Redesignation Applications, and Exchange Visitor Activity Counts. Data in this module also generate FTE projections for FY 2013 and FY 2014. This module contains the following specific FTE data for the following organizational areas:

• Bureau of Educational and Cultural Affairs, Office of Private Sector Exchange, Office of Private Sector Designation (ECA/EC/D) and Office of Exchange Coordination and Compliance (ECA/EC/ECC).

• Human Resources.

• Support Services.

• IIP Budget Office (Bureau of International Information Programs).

• ECA Budget Office.

• Program Management Office.

• Bureau of Educational and Cultural Affairs (ECA).

• Department of State.

This module pulls the data from the previous modules in order to assign direct costs or allocate indirect or G&A costs to each fee. The method in which costs are assigned or allocated varies by cost classification:

• Direct costs are costs that can be specifically identified with an output. For direct costs, Deloitte followed the Direct Cost Assignment method to assign all resource cost to one cost object. In this case, the full cost of activities is assigned to the fee for which it is determined to be a direct cost.

• Indirect costs are costs of resources that are jointly or commonly used to produce two or more outputs but are not specifically identifiable with any one output. For indirect costs, Deloitte followed the Prorated Cost Allocation method to allocate indirect costs to all cost objects based on percentage of total direct cost of the destination cost objects. In this case, the full cost in each indirect cost pool is split and each portion is then assigned to the appropriate fee. Indirect costs were split based on the labor survey allocations to each activity type (i.e., Application or Administrative).

• G&A costs are the costs of support services that an office or segment receives from other segments or entities. G&A costs calculated and apportioned in Other Cost Pools FY2013 and FY2014 are allocated to each of the fees in the same way indirect costs are allocated.

This method for allocating indirect and general and administrative (G&A) cost is fully consistent with cost allocation guidance found in Sections 133 and 134 of Federal Accounting Standards Advisory Board (FASAB) Statement of Federal Financial Accounting Standards (SFFAS) No. 4 as follows:

“133. Sometimes, it might not be economically feasible to directly trace or assign costs on a cause-and-effect basis. These may include general management and support costs, depreciation, rent, maintenance, security, and utilities associated with facilities that are commonly used by various segments.”

“134. These supporting costs can be allocated to segments and outputs on a prorated basis. The cost allocations may involve two steps. The first step allocates the costs of support services to segments, and the second step allocates those costs to the outputs of each segment. The cost allocations are usually based on a relevant common denominator such as the number of employees, square footage of office space, or the amount of direct costs incurred in segments.”

This module pulls data from the Cost Assignment and Allocation module and groups it into total direct, indirect, and G&A cost pools. It then divides each of those cost pool amounts by the total projected SEVIS activity units to determine each fee's direct, indirect, and G&A components. It also sums each of these cost components to provide the total for each fee for FY 2013 and FY 2014. Finally, this module includes a self-check feature to verify the completeness and accuracy of user entries.

This module adds the total costs and SEVIS Activity Units for FY 2013 and FY2014 from the Fee Cost Pool module in order to provide fees that are based on a two-year fee lifecycle consistent with the guidelines set forth in OMB Circular A-25 requiring current Program Sponsors to apply for Redesignation status every two years. It also includes a self-check feature to verify the completeness and accuracy of user entries.

The 2009, 2010, 2011, and 2012 General Schedule Pay Tables and the 2011 SES Pay Rates for the Washington-Baltimore-Northern Virginia Locality were obtained from the U.S. Office of Personnel Management.

Bureau of Educational and Cultural Affairs (ECA) provided the actual Educational and Cultural Exchange Programs budgetary data for FY 2011, and projected budgetary data for FY 2012, FY 2013, and FY 2014.

For the data in the Civilian Pay Cost Data module, ECA provided Deloitte with each ECA/EC/D employee's GS level, and then Deloitte used the Step 5 salary assumption for each level to determine the salary to be entered for each employee. This figure was then escalated by 36.25% to capture benefits. This percentage is the guidance given for average benefits escalation in OMB Circular A-76 Performance of Commercial Activities, Attachment C—Calculating Public-Private Competition Costs.

The only data in the Activity Model Cost Pools module is the Labor Survey results. This input was accomplished by converting the hours each respondent recorded for their position and for each activity they performed during the Labor Survey into percentages of FTEs.

ECA provided the expenditures to date spent on external Learning Management System (LMS) vendor. The cost estimate for the in-house LMS was based on Deloitte's own estimate using interviews, training system requirements, subject-matter experts, and industry standards.

The cost estimates for the development of the Designation Processing System, Electronic File Conversion, and Complaint Management Workflow Module were based on Deloitte's own estimate using interviews, ECA/EC system requirements, subject-matter experts, and industry standards.

The data from Other Cost Pools is derived from the GS Schedule Rates, Baseline ECA Budget, LCC Cost Assessment, DPS Cost Assessment, and SEVIS & FTE Data modules.

• Deloitte used the following methods to derive ECA/EC non-labor cost data:

• All ECA labor cost data is derived from the FY 2012 Employment Compensation and Benefits figure in the ECA Budget module. This figure is pro-rated by the respective ECA organizational area's FTEs, and based on the FY 2012 Employment Compensation and Benefits figure for FY 2013 and FY 2014 estimates.

• For Department non-labor costs, Deloitte obtained the Total Department-wide GSA Rents from the Department of State Congressional Budget Justification—Fiscal Year 2012.

ECA/EC provided Deloitte with historical SEVIS activity counts associated with each fee for calendar years (CY) 2007-2011. ECA/EC also provided Deloitte with actual Department, ECA, and ECA/EC FTE levels for FY 2009 through FY 2011 and projected levels for FY 2012. Using these figures, Deloitte projected for FY 2013 and FY 2014 SEVIS and FTE data in the following manner:

For SEVIS data projections:

For FTE data projections:

The Department of State is of the opinion that the Exchange Visitor Program is a foreign affairs function of the U.S. Government and that rules implementing this function are exempt from Sec 553 (Rulemaking) and Sec 554 (Adjudications) of the Administrative Procedure Act (APA). The U.S. Government supervises programs that invite foreign nationals to come to the United States to participate in exchange visitor programs, either directly or through private sector program sponsors or grantees. When problems occur, the U.S. Government often has been, and likely will be, held accountable by foreign governments for the treatment of their nationals, regardless of who is responsible for the problems.

The purpose of this rule is to set the fees that will fund services provided by the Exchange Visitor Program Office of Designation to more than 1,400 sponsor organizations and 300,000 Exchange Visitor Program participants. These services include oversight and compliance with program requirements as well as the monitoring of programs to ensure the health, safety and well-being of foreign nationals entering the United States (many of these exchange programs and participants are often funded by the U.S. Government) under the aegis of the Exchange Visitor Program and in furtherance of its foreign relations mission. The Department of State represents that failure to protect the health and well-being of these foreign nationals and their appropriate placement with reputable organizations will have direct and substantial adverse effects on the foreign affairs of the United States.

Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule as a proposed rule, with a 60-day provision for public comment and without prejudice to its determination that the Exchange Visitor Program is a foreign affairs function.

As discussed above, the Department believes that this proposed rule is exempt from the provisions of 5 U.S.C. 553, and that no other law requires the Department to give notice of proposed rulemaking. Accordingly the Department believes that this proposed rule is not subject to the requirements of the Regulatory Flexibility Act (5 U.S.C.601, et seq.) or Executive Order 13272, Sec. 3 (b).

This proposed rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the provisions of Executive Order 13175 do not apply to this rulemaking.

This proposed rule is not a major rule as defined by 5 U.S.C. 804 for the purposes of Congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-808). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

As discussed above, the Department is of the opinion that the Exchange Visitor Program is a foreign affairs function of the United States Government and that rules governing the conduct of this function are exempt from the requirements of Executive Order 12866. However, the Department has nevertheless reviewed this proposed regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

The Department has examined the economic benefits, costs, and transfers associated with this proposed rule, and declare that educational and cultural exchanges are both the cornerstone of U.S. public diplomacy and an integral component of American foreign policy. The benefits of these exchanges to the United States and its people are invaluable and cannot be monetized; in the same way, even one instance of an exchange visitor having a bad experience or, worse, being mistreated, could result in embarrassment and incalculable harm to the foreign policy of the United States. Therefore, the Department is of the opinion that these benefits of this rulemaking outweigh its costs.

The Department has reviewed this regulation in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

The information collection requirements contained in this rulemaking are pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35 and OMB Control Number 1405-0147, expiring on November 30, 2013.

Accordingly, 22 CFR part 62 is proposed to be amended as follows:

The Directorate of Defense Trade Controls (DDTC), U.S. Department of State, administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to the jurisdiction of the ITAR, i.e., “defense articles,” are identified on the ITAR's U.S. Munitions List (USML) (22 CFR 121.1). With few exceptions, items not subject to the export control jurisdiction of the ITAR are subject to the jurisdiction of the Export Administration Regulations (“EAR,” 15 CFR parts 730-774, which includes the Commerce Control List (CCL) in Supplement No. 1 to part 774), administered by the Bureau of Industry and Security (BIS), U.S. Department of Commerce. Both the ITAR and the EAR impose license requirements on exports and reexports. Items not subject to the ITAR or to the exclusive licensing jurisdiction of any other agency of the U.S. government, such as the Department of Energy, are subject to the EAR.

The Departments of State and Commerce described in their respective Advanced Notices of Proposed Rulemaking (ANPRM) in December 2010 the Administration's plan to make the USML and the CCL positive, tiered, and aligned so that eventually they can be combined into a single control list ( see “Commerce Control List: Revising Descriptions of Items and Foreign Availability,” 75 FR 76664 (December 9, 2010) and “Revisions to the United States Munitions List,” 75 FR 76935 (December 10, 2010)). The notices also called for the establishment of jurisdictional “bright lines” between items controlled by the Department of State and items other departments, primarily the Department of Commerce, control. This notice seeks to draw a jurisdictional bright line, but largely with respect to items that are now subject to the jurisdiction of the Department of Energy.

This proposed rule removes most of the articles enumerated in USML Category XVI (nuclear weapons related articles). The provisions of 22 CFR parts 120-130 do not apply to all equipment, technical data, or services currently described in Category XVI to the extent that exports of most such equipment, technical data, or services are under the control of the Department of Energy pursuant to the Atomic Energy Act of 1954, as amended, and the Nuclear Non-Proliferation Act of 1978, as amended, or is a government transfer authorized pursuant to these Acts.

The only articles now covered under Category XVI that would remain subject to USML control are modeling or simulation tools that model or simulate the environments generated by nuclear detonations or the effects of these environments on systems, subsystems, components, structures, or humans, and technical data and defense services directly related to those defense articles. In addition, nuclear radiation detection and measurement devices currently controlled in paragraph (c) would become subject to the jurisdiction of the Department of Commerce under already existing Export Control Classification Number (ECCN) 1A004.c.2 or 2A291.e.

Conforming changes are made to ITAR parts 123, 124, 125, and 129 to remove reference to USML Category XVI. In addition, Supplement No. 1 to Part 126 will be revised to remove the following entries: (1) Nuclear weapons strategic delivery systems and all components, parts, accessories, and attachments specifically designed for such systems and associated equipment; (2) defense articles and services specific to design and testing of nuclear weapons; and (3) nuclear radiation measuring devices manufactured to military specifications.

As the U.S. Government works through the proposed revisions to the USML, some solutions have been adopted that were determined to be the best of available options. With the thought that multiple perspectives would be beneficial to the USML revision process, the public is asked to provide specific examples of nuclear-related items whose jurisdiction would be in doubt based on this revision. In particular, the Department seeks comments on whether the proposed paragraph (b) is appropriately captured in USML Category XVI or if there is a more suitable control within the USML or CCL.

The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from sections 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act (APA). Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule with a 45-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function. As noted above, and also without prejudice to the Department position that this rulemaking is not subject to the APA, the Department previously published a related Advance Notice of Proposed Rulemaking (RIN 1400-AC78) on December 10, 2010 (75 FR 76935), and accepted comments for 60 days.

Since the Department is of the opinion that this proposed rule is exempt from the provisions of 5 U.S.C. 553, there is no requirement for an analysis under the Regulatory Flexibility Act.

This proposed rulemaking does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This proposed rulemaking has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

This proposed rulemaking will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this proposed rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this proposed rulemaking.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). These Executive Orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. These rules have been designated “significant regulatory actions,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, this proposed rule has been reviewed by the Office of Management and Budget (OMB).

The Department of State has reviewed the proposed rulemaking in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department of State has determined that this proposed rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, Executive Order 13175 does not apply to this proposed rulemaking.

Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid OMB control number. This proposed rule would affect the following approved collections: (1) Statement of Registration, DS-2032, OMB No. 1405-0002; (2) Application/License for Permanent Export of Unclassified Defense Articles and Related Unclassified Technical Data, DSP-5, OMB No. 1405-0003; (3) Application/License for Temporary Import of Unclassified Defense Articles, DSP-61, OMB No. 1405-0013; (4) Nontransfer and Use Certificate, DSP-83, OMB No. 1405-0021; (5) Application/License for Permanent/Temporary Export or Temporary Import of Classified Defense Articles and Classified Technical Data, DSP-85, OMB No. 1405-0022; (6) Application/License for Temporary Export of Unclassified Defense Articles, DSP-73, OMB No. 1405-0023; (7) Statement of Political Contributions, Fees, or Commissions in Connection with the Sale of Defense Articles or Services, OMB No. 1405-0025; (8) Authority to Export Defense Articles and Services Sold Under the Foreign Military Sales (FMS) Program, DSP-94, OMB No. 1405-0051; (9) Application for Amendment to License for Export or Import of Classified or Unclassified Defense Articles and Related Technical Data, DSP-6, -62, -74, -119, OMB No. 1405-0092; (10) Request for Approval of Manufacturing License Agreements, Technical Assistance Agreements, and Other Agreements, DSP-5, OMB No. 1405-0093; (11) Maintenance of Records by Registrants, OMB No. 1405-0111; (12) Annual Brokering Report, DS-4142, OMB No. 1405-0141; (13) Brokering Prior Approval (License), DS-4143, OMB No. 1405-0142; (14) Projected Sale of Major Weapons in Support of Section 25(a)(1) of the Arms Export Control Act, DS-4048, OMB No. 1405-0156; (15) Export Declaration of Defense Technical Data or Services, DS-4071, OMB No. 1405-0157; (16) Request for Commodity Jurisdiction Determination, DS-4076, OMB No. 1405-0163; (17) Request to Change End-User, End-Use, and/or Destination of Hardware, DS-6004, OMB No. 1405-0173; (18) Request for Advisory Opinion, DS-6001, OMB No. 1405-0174; (19) Voluntary Disclosure, OMB No. 1405-0179; and (20) Technology Security/Clearance Plans, Screening Records, and Non-Disclosure Agreements Pursuant to 22 CFR 126.18, OMB No. 1405-0195. The Department of State believes there will be minimal changes to these collections. The Department of State believes the combined effect of all rules to be published moving commodities from the USML to the EAR as part of the Administration's Export Control Reform would decrease the number of license applications by approximately 30,000 annually. The Department of State is looking for comments on the potential reduction in burden.

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, parts 121, 123, 124, 125, and 129 are proposed to be amended as follows:

The notice of proposed rulemaking and notice of public hearing (REG-130074-11) that is the subject of these corrections is under Section 1.1401-1 of the Income Tax Regulations.

As published, the notice of proposed rulemaking and notice of public hearing (REG-130074-11) contains errors that may prove to be misleading and are in need of clarification.

Accordingly, the notice of proposed rulemaking and notice of public hearing (REG-130074-11), that was the subject of FR Doc. 2012-29237, is corrected as follows:

1. On page 72268, in the preamble, column 2, under the caption DATES , line 6, the language “Must be received by March 5, 2013.” is corrected to read “Must be received by February 28, 2013.”.

2. On page 72272, in the preamble, column 3, under the paragraph heading “Comments and Public Hearing”, line 16, the language “ www.regulations.gov. or upon request. A” is corrected to read “ www.regulations.gov or upon request. A”.

3. On page 72273, in the preamble, column 1, under the paragraph heading “Drafting Information”, line 3, the language “Gerstein and Ligeia M. Donis of the” is corrected to read “Gerstein, formerly of the Office of the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), Andrew Holubeck and Ligeia M. Donis of the”.

The notice of proposed rulemaking (REG-148873-09) that is the subject of these corrections is under section 6045 of the Internal Revenue Code.

As published, the notice of proposed rulemaking (REG-148873-09) contains errors that may prove to be misleading and are in need of clarification.

Accordingly, the notice of proposed rulemaking (REG-148873-09), that was the subject of FR Doc. 2012-31745, is corrected as follows:

1. On page 914, in the preamble, column 2, under the paragraph heading II. Taxpayer Identifying Numbers, line 8 from the bottom of the first full paragraph, the language “employee identification number (EINs).” is corrected to read “employer identification numbers (EINs).”.

2. On page 914, in the preamble, column 2, under the caption “Summary of Comments”, line 8 from the bottom of the page, the language “income tax processing. Treasury and the” is corrected to read “income tax processing. The Treasury Department and the”.

3. On page 914, in the preamble, column 3, under the same caption, lines 6 and 7 of the first full paragraph of the column, the language “so that filers are permitted to furnish payee statements by electronic means.” is corrected to read “so that filers are permitted to use TTINs on payee statements furnished by electronic means.”.

4. On page 915, in the preamble, column 3, under the caption “Comments and Public Hearing”, line 2 of the first paragraph, the language “for February 21, 2013 beginning at 10:00” is corrected to read “for March 12, 2013 beginning at 10:00”.

The proposed rule originally was published in the Federal Register on November 21, 2012, with a 65-day comment period set to end on January 25, 2013. In response to public comments, the comment period has been extended to February 25, 2013.

Although this action only applies to the petitioners in question, it is directed to the public in general. Since various individuals or entities may be interested, the Agency has not attempted to describe all the specific entities that may be interested in this action. If you have any questions regarding this action, please consult the person listed at the end of the withdrawal summary for the pesticide petition of interest.

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2012-0001, is available at http://www.regulations.gov or at the OPP Docket in the Environmental Protection Agency Docket Center (EPA/DC), located in EPA West, Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

EPA is announcing the withdrawal of pesticide petitions received under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities.

Pursuant to 40 CFR 180.7(f), a summary of each of the petitions covered by this document, prepared by the petitioner, was included in a docket EPA created for each rulemaking. The docket for each of the petitions is available online at http://www.regulations.gov.

1. PP 0E7754 (Gentamicin). EPA issued a notice in the Federal Register of July 6, 2011 (76 FR 39358) (FRL-8875-6) (EPA-HQ-OPP-2010-0820), which announced the filing of a pesticide petition (PP 0E7754) by Quimica Agronomica de Mexico, S. de R.L. MI., Calle 18 N[deg] 20501, Colonia Impulso, C.P. 31183, Chihuahua, Chih., Mexico c/o Gowan Company, P.O. Box 5569, Yuma, AZ 85366. The petition proposed to establish a tolerance in 40 CFR 180.642 for residues of the fungicide gentamicin, in or on cucurbits (crop group 9) at 0.05 parts per million (ppm) and fruiting vegetables (crop group 8) at 0.05 ppm. On June 18, 2012, Gowan Company (U.S. agent on behalf of Quimica Agronomica de Mexico) notified EPA that it was withdrawing this petition. Contact: Shaunta Hill, (703) 347-8961, email address: hill.shaunta@epa.gov.

2. PP 0E7755 (Oxytetracycline). EPA issued a notice in the Federal Register of September 23, 2010 (75 FR 57942) (FRL-8845-4) (EPA-HQ-OPP-2010-0740), which announced the filing of pesticide petition (PP 0E7755) by Quimica Agronomica de Mexico, S. de R.L. MI., Calle 18 N 20501, Colonia Impulso, C.P. 31183, Chihuahua, Chih., Mexico. The petition proposed to establish a tolerance in 40 CFR 180.337 for residues of the fungicide oxytetracycline, in or on cucurbits, crop group 9; and fruiting vegetables, crop group 8 at 0.03 ppm. On June 18, 2012, Gowan Company (U.S. agent on behalf of Quimica Agronomica de Mexico) notified EPA that it was withdrawing this petition. Contact: Heather Garvie, (703) 308-0034, email address: garvie.heather@epa.gov.

3. PP 1F7887 (Phosphine). EPA issued a notice in the Federal Register of October 5, 2011 (76 FR 61649) (FRL-8890-5) (EPA-HQ-OPP-2011-0741), which announced the filing of a pesticide petition (PP 1F7887) by Cytec Industries, Inc., 5 Garret Mountain Plaza, Woodland Park, NJ 07424. The petition proposed to establish tolerances in 40 CFR 180.225 for residues of phosphine, in or on asparagus; cherimoya; dates, fresh; figs, fresh; globe artichokes; pawpaws; pineapple, water chestnuts and watercress, and for all fresh fruit and vegetable crop groups (including berry and small fruit; citrus fruit; pome fruit; stone fruit; herbs and spices; Brassica leafy vegetables; leafy vegetables; bulb vegetables; cucurbits; fruiting vegetables except cucurbits; legume vegetables, except soybeans; foliage of legume vegetables; root and tuber group; and root and tuber leaves group) at 0.01 ppm. On April 5, 2012, Cytec Industries notified EPA that it was withdrawing the petition. Contact: Gene Benbow, 703-347-0235, email address: benbow.gene@epa.gov.

4. PP 4F4281 (Iprodione). EPA issued a notice in the Federal Register of August 2, 2006 (71 FR 43760) (FRL-8082-8) (EPA-HQ-OPP-2006-0637), which announced the filing of pesticide petition (PP 4F4281) by Bayer CropScience, Research Triangle Park, North Carolina 27709. The petition proposed to establish a tolerance for iprodione, [3-(3,5-dichlorophenyl)- N -(1-methylethyl)-2,4- dioxo-1-imidazolidinecarboxamide, its isomer 3-(1-methylethyl)- N -(3,5- dichlorophenyl)-2,4-dioxo-1-imidazolidinecarboxamide, and its metabolite 3-(3,5-dichlorophenyl)-2,4-dioxo-1-imidazolidinecarboxamide in or on the food commodity rapeseed (canola) at 1.0 ppm. On March 7, 2012, Bayer Crop Science, notified EPA that it was withdrawing its petition. Contact: Tamue L. Gibson, (703) 305-9096, email address: gibson.tamue@epa.gov.

5. PP 9F7565 (Iprodione). EPA issued a notice in the Federal Register of September 4, 2009 (74 FR 45848) (FRL-8434-4) (EPA-HQ-OPP-2009-0550), which announced the filing of pesticide petition (PP 9F7565) by Devgen US, Inc., 413 McFarlan Road, Suite B, Kennett Square, PA 19348, which proposed to establish a tolerance in 40 CFR 180.399 for residues of iprodione, in or on cucurbit crop group at 0.3 ppm; and fruiting vegetables, except cucurbits at 2.0 ppm. On June 22, 2012, Devgen US, Inc., notified EPA that it was withdrawing its petition. Contact: Tamue L. Gibson, (703) 305-9096, email address: gibson.tamue@epa.gov.

6. PP 2E7993 (Ethephon). EPA issued a notice in the Federal Register of May 23, 2012 (77 FR 30481) (FRL-9347-8) (EPA-HQ-OPP-2012-0241), which announced the filing of pesticide petition (PP 2E7993) by Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition proposed to increase a tolerance in 40 CFR 180.300 for residues of the plant regulator ethephon in or on tomato from 2.0 ppm to 3.5 ppm. On January 3, 2013, IR-4 notified EPA that it was withdrawing this petition. Contact: Andrew Ertman, (703) 308-9367, email address: ertman.andrew@epa.gov .

In FR Doc. 2013-00659 of January 22, 2013 (78 FR 4594), there was a technical error that is identified and corrected in the Correction of Errors section below. The provision in this correction document is effective as if it had been included in the document published on January 22, 2013.

In the DATES section of the proposed rule, we established a closing date of the 30-day comment period as February 13, 2013. In this notice we are making a technical correction to the comment period, which now closes on February 21, 2013.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice. This correction notice has the effect of extending the period for public comment that was initially established in the proposed rule published in the Federal Register on January 22, 2013 (78 FR 4594). This correction notice makes no changes to any of the substantive matters discussed in the proposed rule. Rather, this correction notice makes a technical correction to the date on which the period for public comment on the previously published proposed rule ends. This technical correction will not disadvantage any member of the public, and it is in the public interest to permit the full intended time period for comment. Therefore, we find it unnecessary to issue a notice of proposed rulemaking for this correction notice.

In FR Doc. 2013-00659 of January 22, 2013 (78 FR 4594), make the following corrections:

In the DATES section, the date “February 13, 2013” is corrected to read “February 21, 2013”.

This is a summary of the Commission's Third Further Notice of Proposed Rule Making (“ Third FNPRM” ) in WT Docket No. 01-289, FCC 13-2, adopted on January 7, 2013, and released on January 8, 2013. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov . Alternative formats are available to persons with disabilities by sending an email to fcc504@fcc.gov or by calling the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. The WT Docket No. 01-289 rulemaking proceeding was established to ensure that part 87 of the Commission's rules remains up-to-date and continues to further the Commission's goals of accommodating new technologies, facilitating the efficient and effective use of the aeronautical spectrum, avoiding unnecessary regulation, and, above all, enhancing the safety of flight. In the Third FNPRM, the Commission invites further comment on the appropriate treatment of 121.5 MHz ELTs under part 87 of the rules. ELTs are radiobeacons that are activated manually or automatically to alert search and rescue personnel that an aircraft has crashed, and to identify the location of the aircraft and any survivors. In the Third Report and Order, at 76 FR 17347, March 29, 2011, in this proceeding, the Commission amended § 87.195 of its rules to prohibit the certification, manufacture, importation, sale or use of 121.5 MHz ELTs. It adopted this amendment because, among other reasons, the international Cospas-Sarsat satellite system, which relays distress alerts to search and rescue authorities, stopped monitoring frequency 121.5 MHz on February 1, 2009.

2. After the Commission released the Third Report and Order, it received a letter from the Federal Aviation Administration (FAA) asking that the Commission not implement the modification to § 87.195. The FAA stated that 121.5 MHz ELTs can continue to provide beneficial means of locating missing aircraft even without satellite monitoring because the frequency is still monitored by the search and rescue community, including the Civil Air Patrol. The FAA also expressed concerns about the costs and availability of replacements for the 121.5 MHz ELTs.

3. Following its receipt of the FAA letter, the Commission determined that it would be in the public interest to stay its amendment to § 87.195. In the Stay Order, at 76 FR 17353, March 29, 2011, which was published in the Federal Register on the same day as the summary of the Third Report and Order, the Commission stated that no additional action would be taken regarding 121.5 MHz ELTs until further notice and an additional opportunity for public comment. This Third FNPRM requests such comment.

4. This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed as provided in the Commission's rules.

5. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before March 1, 2013 and reply comments on or before March 18, 2013. All filings related to this Third FNPRM should refer to WT Docket No. 01-289.

6. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS), the Federal Government's eRulemaking Portal, or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

7. Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov . Filers should follow the instructions provided on the Web site for submitting comments.

8. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet email. To get filing instructions, filers should send an email to ecfs@fcc.gov, and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

9. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

10. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

11. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue NE, Suite 110, Washington DC 20002. The filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

12. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

13. U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.

14. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. Parties shall also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, or via email to fcc@bcpiweb.com.

15. Availability of documents. The public may view the documents filed in this proceeding during regular business hours in the FCC Reference Information Center, Federal Communications Commission, 445 12th Street SW., Room CY-A257, Washington, DC 20554, and on the Commission's Internet Home Page: http://www.fcc.gov . Copies of comments and reply comments are also available through the Commission's duplicating contractor: Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160, may be reached by email at fcc@bcpiweb.com or via BCPI's Web site at www.bcpiweb.com . To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

16. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

17. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of the possible significant economic impact on small entities of the policies and rules proposed in the Third FNPRM in WT Docket No. 01-289. Written public comments are requested on this Supplemental IRFA. Comments must be identified as responses to the Supplemental IRFA and must be filed by the deadlines for comments on the Third FNPRM as provided in paragraph 5 above. The Commission will send a copy of the Third FNPRM, including this Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the Third FNPRM and Supplemental IRFA (or summaries thereof) will be published in the Federal Register .

18. The proposed rules in the Third FNPRM are intended to address the appropriate regulatory treatment of 121.5 MHz emergency locator transmitters (ELTs) now that they are no longer monitored by the Cospas-Sarsat satellite system.

19. Authority for issuance of this item is contained in sections 4(i), 303(r) and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 403.

20. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency after consultation with the Office of Advocacy of the SBA, and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register .”

21. Small businesses in the aviation and marine radio services use a marine very high frequency (VHF), medium frequency (MF), or high frequency (HF) radio, any type of emergency position indicating radio beacon (EPIRB) and/or radar, an aircraft radio, and/or any type of emergency locator transmitter (ELT). The Commission has not developed a definition of small entities specifically applicable to these small businesses. For purposes of this analysis, the Commission uses the SBA small business size standard for the category Wireless Telecommunications Carriers (except satellite),” which is 1,500 or fewer employees. Census data for 2007 shows that there were 1,383 firms that operated that year. Of those 1,383, 1,368 had fewer than 100 employees, and 15 firms had more than 100 employees. Thus under this category and the associated small business size standard, the majority of firms can be considered small.

22. Some of the rules adopted herein may also affect small businesses that manufacture aviation radio equipment. The Census Bureau does not have a category specific to aviation radio equipment manufacturers. The appropriate category is that for wireless communications equipment manufacturers. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.” The SBA has developed a small business size standard for Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing, which is: All such firms having 750 or fewer employees. According to Census bureau data for 2007, there were a total of 919 firms in this category that operated for the entire year. Of this total, 771 had fewer than 100 employees and 148 had more than 100 employees. Thus, under this size standard, the majority of firms can be considered small.

23. We are considering in the Third FNPRM whether to prohibit the certification, manufacture, importation, sale or use of 121.5 MHz ELTs, and, if so, under what timetable. We request comment on whether the manufacturers, importers, sellers, and, in particular, users of 121.5 MHz ELTs are small entities, and the extent to which a total or partial prohibition of 121.5 MHz ELTs might impose burdens on them. We request specific data on the costs of purchasing and installing a 406 MHz ELT to replace a 121.5 MHz ELT, the availability of 406 MHz ELTs, and the possibility that some general aviation aircraft may be grounded due to an inability to acquire a 406 MHz ELT.

24. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

25. It is not economically or technologically feasible to retrofit 121.5 MHz ELTs to transmit a 406 MHz distress alert. We believe, however, that the safety benefits of 406 MHz ELTs outweigh the cost of replacing 121.5 MHz ELTs. The Third FNPRM seeks comment on how best to minimize the economic impact of migrating to 406 MHz ELTs. Specifically, we propose to amend § 87.195 of the Commission's rules to prohibit further certification of new models of 121.5 MHz ELTs on the effective date of the rule amendment, and to prohibit any further manufacture, importation, and sale of 121.5 MHz ELTs beginning one year after the effective date of the rule amendment. We also seek comment on alternatives to these proposals, including those that may minimize any economic impact on small entities. Commenters may advocate, for example, for an immediate prohibition of all actions that would enable additional installations of 121.5 MHz ELTs, for different transition periods, or for taking no action at all, and leaving § 87.195 as is. In addition, the Third NPRM invites comment, but makes no specific proposals, regarding the continued use of 121.5 MHz ELTs. We request comment on whether we should grandfather the continued use of 121.5 MHz ELTs already installed on aircraft, and, if so, for how long. Commenters favoring a grandfathering period of limited duration are asked to recommend a specific date, and commenters may also advocate for indefinite grandfathering of installed 121.5 MHz ELTs, so that the equipment may continue to be used until the end of its useful life. We also propose to amend § 87.147(b) of the Commission's rules to remove an obsolete cross-reference to subpart N of part 2 of the Commission's rules.

26. None.

27. Pursuant to sections 4(i), 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 403, this Third FNPRM is adopted.

28. Pursuant to the applicable procedures set forth in §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, and 1.419, interested parties may file comments on this Third FNPRM on or before 30 days after publication in the Federal Register , and reply comments on or before 45 days after publication in the Federal Register .

29. The Commission's Consumer Information Bureau, Reference Information Center, shall

SEND a copy of this Third FNPRM, including the Supplemental Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 87 as follows:

The king and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) are managed under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

NMFS published the final rule to implement the CR Program, Amendments 18 and 19 to the FMP, on March 2, 2005 (70 FR 10174). Regulations implementing the FMP and all amendments to the CR Program are at 50 CFR part 680.

The CR Program is a catch share program for nine BSAI crab fisheries that allocates those resources among harvesters, processors, and coastal communities. Under the CR Program, NMFS issued quota share (QS) to eligible harvesters based on their participation during a set of qualifying years in one or more of the nine CR Program fisheries. QS is an exclusive, revocable privilege allowing the holder to harvest a specific percentage of the annual total allowable catch (TAC) in a CR Program fishery.

A QS holder's annual allocation, called IFQ, is expressed in pounds and is based on the amount of QS held in relation to the total QS pool for that fishery. NMFS issues IFQ in three classes: Class A IFQ, Class B IFQ, and Class C IFQ. Three percent of IFQ is issued as Class C IFQ for captains and crew. Of the remaining IFQ, 90 percent is Class A IFQ and 10 percent is Class B IFQ.

NMFS issued processor quota share (PQS) to qualified individuals and entities based on processing activities in CR Program fisheries during a period of qualifying years. PQS is an exclusive, revocable privilege to receive deliveries of a fixed percentage of the annual TAC from a CR Program fishery. A PQS holder's annual allocation is individual processing quota (IPQ). NMFS issues IPQ at a one-to-one correlation between the amount of IPQ and Class A IFQ issued for each CR Program fishery. Class A IFQ must be delivered to a processor holding a matching amount of IPQ; Class C IFQ and Class B IFQ may be delivered to any registered crab receiver.

The CR Program established regional delivery requirements to preserve the historic geographic distribution of deliveries in the crab fisheries. NMFS assigned a regional designation to QS and PQS for seven of the nine CR Program fisheries. Regional designations of QS and PQS are described, respectively, in § 680.40(b)(2) and (d)(2).

Amendment 41 and this proposed rule would apply to QS and PQS that have a regional designation for the North Region or South Region. NMFS assigned a North Region designation or a South Region designation to the QS and PQS in six CR Program fisheries: Bristol Bay red king crab, Bering Sea snow crab, Eastern Aleutian Islands golden king crab, Western Aleutian Islands red king crab, Saint Matthew Island blue king crab, and Pribilof Islands red and blue king crab. The North Region is north of 54°20″ N. latitude. The South Region is south of 54°20″ N. latitude.

NMFS also assigned a West Region designation to a portion of the Western Aleutian Islands golden king crab QS and PQS; the remaining QS and PQS in that fishery is undesignated and may be delivered without regional limitation. Eastern Bering Sea Tanner crab QS and PQS, and Western Bering Sea Tanner crab fishery QS and PQS do not have a regional designation. Amendment 41 and this proposed rule would not apply to QS and PQS issued for these fisheries.

Class A IFQ has the same regional designation as the underlying QS. Class B IFQ and Class C IFQ do not have regional designations: the crab harvested under Class B IFQ or Class C IFQ can be delivered to any registered crab receiver. For Class A IFQ with a regional designation, CR Program regulations at § 680.7(a)(2) prohibit a processor from receiving crab in any region other than the region designated on the IFQ permit.

IPQ has the same regional designation as the underlying PQS. CR Program regulations at § 680.7(a)(4) prohibit the use of IPQ to process crab in any region other than the region designated on the IPQ permit.

Environmental or man-made conditions have created obstacles to regional deliveries in every year since implementation of the CR Program. Each year, icing conditions have been an obstacle to delivering crab harvested with North Region IFQ in the North Region. For an entire season, deliveries to a floating processor that served most of the North Region were prevented by a fire that disabled the processor. Whether a delivery is prevented depends on the circumstances, such as the spatial distribution and type of ice, the specific vessel, the location of the vessel relative to the processing facility, the amount and condition of crab on board, and any factors affecting the willingness of the captain to wait for conditions to change.

Despite these circumstances, participants have met regional delivery requirements in all CR Program fisheries except Western Aleutian Islands golden king crab. Amendment 37, described below, addressed the problems in that fishery. In the North Region, IFQ holders have complied with regional delivery requirements by using their harvesting cooperatives to adjust the timing of crab harvests and using other available IFQ in lieu of North Region IFQ. Such ad hoc responses to severe weather conditions or other circumstances that restrict landings have enabled the participants in the North Region to meet regional delivery requirements; however, these measures have not provided long-term solutions that sufficiently address timeliness, safety, economic efficiency, and other factors.

Western Aleutian Islands golden king crab fishery had suffered from a chronic lack of processing capacity in the West Region. Amendment 37 to the FMP addressed the difficulties of IFQ and IPQ holders meeting the regional delivery requirement in this fishery. Under regulations implementing Amendment 37, eligible participants in the Western Aleutian Islands golden king crab fishery may enter into a contractual agreement and request that NMFS exempt them from regional delivery requirements for West Region Class A IFQ and corresponding IPQ. Upon approval of a completed application, NMFS will exempt holders of West Region Class A IFQ and corresponding IPQ from regional delivery requirements, thereby allowing eligible participants to deliver and receive crab at facilities outside of the West Region. Additional information on Amendment 37 is contained in the final rule (76 FR 35781, June 20, 2011).

Because the conditions that have impeded deliveries within the West Region (e.g., limited, or no, available processing capacity) differ from the conditions impeding deliveries in the North Region (e.g., icing conditions), the Council chose to develop Amendment 41 to respond to the specific delivery conditions in CR fisheries subject to North and South regional designations.

The CR Program has PQS and IPQ use caps. When the Council recommended the CR Program, it was concerned that excessive consolidation of PQS could reduce competition and reduce processing in communities where processing had historically occurred. Therefore, the Council created limits on the total amount of PQS that a person can hold, the amount of IPQ that a person can use, and the amount of IPQ that can be processed at a single facility. For a complete discussion of the PQS and IPQ use caps, please see the proposed rule for the CR Program (69 FR 63200; October 29, 2004). As discussed below, this proposed rule modifies the CR Program use caps so that NMFS would not count crab delivered pursuant to an exemption toward those caps. This change is necessary to allow IPQ holders and facilities to accept crab for delivery and processing once the crab is subject to an exemption from the regional delivery requirements.

The Council adopted Amendment 41 to the FMP at its December 2010 meeting. Amendment 41 would promote the safety of human life at sea and mitigate economic harm by allowing participants to receive an exemption from regional delivery requirements in situations where events prevent participants from delivering crab harvested with North Region IFQ in the North Region or South Region IFQ in the South Region.

In recommending Amendment 41, the Council recognized that weather conditions or other natural or man-made circumstances can hinder harvesting activities and restrict access to processing facilities in the North or South Region. Natural or man-made catastrophes could result in lost revenue to harvesters, processors, and communities. Safety risks increase when harvesters attempt to meet regional delivery requirements in inclement weather (e.g., icing conditions) and other potentially unsafe situations. Unforeseen delays in delivering crab could result in deadloss (crab that die before being processed). Harvesters may avoid or delay the harvest of regionally designated IFQ, thereby increasing the potential for unharvested crab or crab harvested later in the fishing season than would have been otherwise required for a given TAC level. Such changes in fishing behavior could result in unused IPQ, increased processing cost, loss of market share, and loss of revenue to remote communities dependent on revenues from crab deliveries and processing.

The Council recognized that the purpose of prohibiting holders of regionally designated Class A IFQ and IPQ from delivering and processing crab outside the designated region is to ensure that each region retains the economic benefits from deliveries within the region. Therefore, under Amendment 41, the Council recommended an exemption process in which deliveries of regionally designated Class A IFQ outside the region would need to be negotiated among IFQ holders, IPQ holders, and representatives of affected communities. The Council also recognized that any exemption must include requirements for IFQ holders and IPQ holders to make efforts to avoid the need for an exemption and, if an exemption is needed, to limit the amount of IFQ and IPQ that would be subject to an exemption. The Council recommended a process that supports the existing regional delivery requirements while establishing a process to mitigate disruptions in a CR Program fishery that restrict the ability of participants to comply with the delivery requirements.

The Council also recognized the potential for insurmountable administrative difficulties if NMFS specified the conditions for granting an exemption and then determined whether those conditions existed in a particular situation. Therefore, the Council recommended a system of civil contracts among harvesters, processors, and community representatives as the means of establishing the exemption from the regional delivery requirements.

Under Amendment 41, the parties—Class A IFQ holders, IPQ holders, and affected communities—would develop private contractual arrangements that specify when, and under what terms, they could request and receive an exemption from regional delivery requirements in the North or South Region. The contract terms would not be established in the FMP or in regulation. The parties would enter into two private contractual arrangements—a preseason framework agreement and an inseason exemption contract—before the specified IFQ and IPQ would be exempt from the regional delivery requirements. These contracts would govern the roles and responsibilities of the parties to the contract and would establish each party's specific obligations. The goal is that, through the framework agreement process, before the crab season, the parties would plan for adverse conditions and would agree to take actions to reduce the need for an exemption. Then, in the event that these actions were unsuccessful in averting the need for an exemption, the parties would execute an exemption contract. The parties would notify NMFS and certify that they had executed an exemption contract as required by the regulation. The exemption would go into effect the day after NMFS receives the inseason notice. If any party to a framework agreement or exemption contract believes that any other party did not comply with their contractual obligation, that party could seek redress as a private civil matter.

Overall, the exemption process in the proposed rule seeks to allow fishery participants to respond to an emergency situation during the crab fishing season in accord with ground rules that they themselves established before the season.

Amendment 41 and this proposed rule do not prescribe specific conditions or terms of agreement for the framework agreement or exemption contract. But the Council's Statement of Council Intent should guide the parties in establishing the required contracts. Additionally, section 2.4.2 of the RIR for this action provides background about the range of private arrangements that the Council considered and that the parties could put in the framework agreement and the exemption contract.

The following Statement of Council Intent was included in the Council's December 2010 motion:

The framework agreement would define the steps that the parties would take prior to the crab fishing season to reduce the need for, and amount of, an exemption during the crab fishing year. A framework agreement could include an agreement among IFQ holders, whereby they aggregate a certain percentage of their IFQ to address inseason factors that could otherwise prevent compliance with regional delivery requirements. For example, the framework agreement could prioritize the harvest of North Region Class A IFQ while setting aside a portion of South Region Class A IFQ until the North Region Class A IFQ has been harvested and delivered to matching North Region IPQ. The framework agreement would also address the circumstances that would trigger an exemption. If those circumstances occurred, the framework agreement would describe the steps that the parties would take to mitigate the adverse effects of the exemption. The framework agreement might include steps to compensate the community that was losing the processing, the economic activity from the processing, and the tax revenues from the processing.

However, the Council did not recommend, and this proposed rule does not include, any terms that the parties must include in their framework agreement or exemption contract. The parties to the agreements would determine those terms.

This proposed rule would establish a process by which IFQ holders, IPQ holders, and affected communities could jointly apply for and receive an exemption from regional delivery requirements. This proposed rule would apply to the following crab fisheries: Bristol Bay red king crab, Bering Sea snow crab, Eastern Aleutian Islands golden king crab, Western Aleutian Islands red king crab, Saint Matthew Island blue king crab, and Pribilof Islands red and blue king crab.

This proposed rule would implement a two-step process for an exemption from regional delivery requirements: A preseason application and an inseason notice of exemption. Both parts of the application would be on one form: the Application for Exemption from CR Crab Regional Delivery Requirements. This application process would allow the parties to apply for an exemption from the regional delivery requirements without extensive administrative review by NMFS. Under this proposed rule, both the preseason application and the inseason notice must be signed by one or more members of the following three groups: (1) Holders of Class A IFQ in a CR Program fishery subject to this proposed rule; (2) holders of the IPQ in a CR Program fishery subject to this proposed rule; and (3) a representative of the affected community.

The preseason application process itself has two parts: (1) The development of a framework agreement by the parties; and (2) the submission of a preseason application to NMFS. During the first part of the preseason process, Class A IFQ holders, IPQ holders, and representatives from affected communities could choose to work together to establish a framework agreement for that crab fishing year. The framework agreement is intended to provide participants in the crab fishery with the flexibility to prepare for, and agree upon, certain aspects of an exemption prior to the start of the crab fishing season. This proposed rule would not require fishery participants to enter a framework agreement; however, a framework agreement would be required for fishery participants to obtain an exemption from the regional delivery requirements in that crab fishing year.

Developing the provisions of a framework agreement preseason should prevent the parties from seeking an exemption for simple convenience as well as provide several benefits to the parties. First, agreement of all parties to a framework agreement should streamline the process for seeking an exemption from the regional delivery requirements inseason. A framework agreement would provide a means for IFQ holders and IPQ holders to quickly obtain an inseason exemption from the regional delivery requirement. Second, the framework agreement could prevent a party or parties from imposing unreasonable terms in the event that an exemption is needed. For example, absent a preseason agreement, an IFQ holder who is hampered from making a landing due to unsafe icing conditions could potentially be at a disadvantage when negotiating terms of the exemption.

Once the parties establish a framework agreement, the parties would submit the preseason application. A completed preseason application must be received by NMFS by October 15 of the crab fishing year for which the applicants may need an exemption. October 15 is the opening date of the fishing season established by the Alaska Department of Fish and Game for five of the six CR Program fisheries subject to this proposed rule. NMFS notes that the October 15 application deadline is after the August 15 opening of the Eastern Aleutian Islands golden king crab fishery season. However, participants in any of the crab fisheries subject to this rule could submit their application before October 15. Specifically, the participants in the Eastern Aleutian Islands golden king crab fishery could submit their preseason application before August 15.

The applicants would be responsible for ensuring that NMFS receives a complete application package. A complete preseason application would identify the CR program fishery for which the applicants are seeking an exemption. A complete preseason application must be signed by the holders of the IFQ and IPQ that are the subject of the preseason application and by the community representative.

A preseason application also includes an affidavit that the parties submitting the preseason application have signed a framework agreement that: (1) Specifies the CR crab fisheries that are the subject of the framework agreement; (2) specifies the actions that the parties will take to reduce the need for, and the amount of, an exemption; (3) specifies the circumstances under which the parties would execute an exemption contract and receive an exemption; (4) specifies the actions that the parties would take to mitigate the effects of an exemption; (5) specifies the compensation, if any, that any party would provide to any other party; and (6) affirms that the required parties have signed the framework agreement. The parties may include any other mutually agreeable terms in the framework agreement.

NMFS would review each preseason application. If a preseason application was timely and complete, NMFS would approve the application. If a preseason application was not received by October 15, NMFS would deny the application. If NMFS denied a preseason application for any reason, those applicants would not be eligible for an exemption from regional delivery requirements during the crab fishing year. However, the applicants would have the right to appeal the denial.

If NMFS approves a preseason application, the applicants who submitted the preseason application could make a delivery out-of-region during the crab fishing year if, before the delivery, the applicants took two actions that are specified in the regulation: (1) The applicants executed an exemption contract; and (2) the applicants submitted an inseason notice to NMFS that they are exercising the exemption.

The preseason application process in the proposed rule is consistent with the Council's intent that NMFS only determine whether the applicants have certified to NMFS that they have signed a framework agreement that contains the required elements. The preseason application process would allow the parties themselves to establish the terms of the framework agreement. The preseason application process would allow the affected parties to enter the fishing season knowing the steps that the parties would take to avoid an exemption, the circumstances that would trigger an exemption, the steps they would need to take to obtain an exemption, and any mutually-agreed upon compensatory actions that the parties would take as a result of exercising the exemption.

If parties to an approved preseason application conclude during the crab fishing year that circumstances have occurred that justify an inseason exemption under the framework agreement, those applicants must do two things to obtain an exemption. They must enter into an exemption contract with each other and they must jointly submit an inseason notice of the exemption to NMFS.

First, the exemption contract: the proposed rule specifies that the parties to an exemption contract must be, at a minimum, one IFQ holder, one IPQ holder, and the representative of the affected community. The parties to an exemption contract may be multiple IFQ holders, IPQ holders, and one or more community representatives. The proposed rule also specifies subjects that must be addressed in the exemption contract: (1) The IFQ amount and IPQ amount, by crab fishery, that is subject to the exemption contract; (2) the circumstances under which the parties are exercising the exemption; (3) the actions that the parties must take to mitigate the effects of the exemption; (4) the compensation, if any, that any party must make to any other party; (5) whether all required parties have signed the exemption contract. The parties may include any other mutually agreeable terms in the exemption contract.

Second, an inseason notice to NMFS: after the parties execute an exemption contract, the parties would jointly submit an inseason notice to NMFS. The parties would certify to NMFS that the required parties are submitting the inseason notice, namely the holders of the IFQ and IPQ that is the subject of the inseason notice and the community representative eligible to submit an inseason notice of exemption for this IFQ and IPQ. The parties would also certify to NMFS that they have signed an exemption contract that addresses the mandatory subjects in the contract. Each applicant would affirm that all information and claims in the inseason notice are true, correct and complete.

If the parties submit a complete inseason notice to NMFS, the exemption would automatically go into effect the day after submission. The exemption would be in effect only for the IFQ and IPQ specified on the inseason notice. NMFS would post the effective date of the exemption on the NMFS Alaska Region Web site.

Once an exemption is effective, crab harvested with the IFQ specified on the notice could be delivered outside the designated region (North or South) during the rest of the crab fishing year. Once an exemption is effective, crab processed with the IPQ specified on the notice could be processed outside the designated region during the rest of the crab fishing year. Deliveries of crab out-of-region that are not allowed by an exemption would continue to be fishery violations. The regulation has no limit on the number of times in a crab fishing year that applicants with an approved preseason application could submit an inseason notice of an exemption.

The exemption process under Amendment 41 for the North and South Region differs from the exemption process under Amendment 37 for the West Region in four ways. First, under Amendment 37, any person that holds more than 20 percent of the West Region QS or West Region PQS in the Western Aleutian Islands golden king crab fishery must be a party to any request for an exemption from the regional delivery requirements. Persons holding 20 percent or less of either share type have no direct input into the contract negotiations or application. Under Amendment 41, each IFQ holder and each IPQ applies for an exemption. It does not matter how much IFO and IPQ an applicant holds.

Second, an exemption granted under Amendment 37 applies to all West Region IFQ and West Region IPQ in the Western Aleutian Islands golden king crab fishery. Under Amendment 41, an exemption only applies to the IFQ and IPQ that is the subject of a preseason application and an inseason notice.

Third, under Amendment 37, only the IFQ holders and IPQ holders apply for an exemption. Under Amendment 41, the affected community would also apply for an exemption.

Finally, Amendment 37 has only a preseason application and, although the applicants must have entered into a master contract, the regulation does not specify subjects that must be addressed in the contract. Under Amendment 41, the parties enter into both a preseason framework contract and an inseason exemption contract and the regulation specifies subjects that must be addressed in both contracts.

This proposed rule gives affected communities a role in the exemption process. The proposed rule would require that a representative of the affected community sign the framework agreement, the preseason application, the exemption contract, and the inseason notice. An affected community is the community that holds the Right of First Refusal (ROFR) on designated PQS. In communities holding or formerly holding the Right of First Refusal (ROFR) on designated PQS, the community representative would be the established non-profit eligible crab community (ECC) entity, defined at § 680.2. All these communities have designated EEC entities that NMFS has approved. For the communities of Saint Paul, Saint George, False Pass, and Akutan, the EEC entity is the local Community Development Quota (CDQ) group. For Unalaska, Port Moller, King Cove, and Kodiak, the ECC entity is designated by the municipal government.

NMFS also issued a portion of the PQS for the Bering Sea snow crab fishery and the Saint Matthew Island blue king crab fishery without a ROFR designation (non-ROFR PQS). Saint Paul and Saint George are the only two communities in the North Region that have historically received and processed Bering Sea snow crab and Saint Matthew Island blue king crab. Therefore, they would be the affected communities for the purposes of an exemption from the regional delivery requirements. The Council recommended that the CDQ entities representing Saint Paul (Central Bering Sea Fishermen's Association or CBSFA) and Saint George (Aleutian Pribilof Island Community Development Association or APICDA) select a single community representative to sign on their behalf, the framework agreement, the preseason application, the exemption contract, and the inseason notice for this non-ROFR PQS. The Council recommended one community representative for non-ROFR PQS to reduce the potential for additional administrative burden that may arise if representatives of both APICDA and CBSFA were required to sign these documents.

Under this proposed rule, APICDA and CBSFA would have 180 days from the effective date of the final rule to inform NMFS in writing that they have designated a single community representative responsible for signing the framework agreement, the preseason application, the exemption contract, and the inseason notice. After publication of the final rule, NMFS would notify APICDA and CBSFA of the deadline to designate a single community representative and provide instructions for informing NMFS of the community representative. The 180-day window should provide adequate time for the two CDQ entities to coordinate their recommendation but not create an undue delay.

The Council did not specify what would happen if APICDA and CBSFA do not designate a single community representative or if they want to revoke a designation in the future. NMFS therefore proposes that if APICDA and CBSFA do not designate a community representative to NMFS by the deadline, then both APICDA and CBSFA would need to sign the documents for the applicable North Region non-ROFR PQS. This provision ensures that both CDQ entities would participate in reaching these agreements if they did not designate a single community representative.

Additionally, NMFS proposes that APICDA or CBSFA may revoke its designation of a community representative by providing written notice to the other entity and to NMFS. If either APICDA or CBSFA revokes its designation of a community representative, then both APICDA and CBSFA would need to sign all documents related to the exemption: the framework agreement, the preseason application, the exemption contract, and the inseason notice. However, if APICDA or CBSFA revoke its designation after October 15, the revocation will not affect the validity of any action taken by the designated community representative pursuant to § 680.4(p) for that crab fishing year.

This proposed rule would not change existing IPQ use caps; however, it would add exemptions from IPQ use caps when NMFS approves an exemption from the regional delivery requirements. The CR Program at § 680.42(b) limits the amount of IPQ that a single person may hold. Under the proposed rule at § 680.42(b)(7), NMFS would not count crab processed outside the designated region pursuant to an exemption against this limit.

The CR Program at § 680.42(b) also limits how much IPQ an individual facility may use or process. Under the proposed rule at § 680.42(b)(8), NMFS would not count crab processed outside the designated region under an exemption toward the IPQ use cap of the processing facility. It is likely that a facility would likely process crab from outside the designated region through a custom processing arrangement. The receiving processor would likely have little notice to prepare for the delivery. An exemption from the IPQ use caps would help to ensure that a facility would not refuse delivery of the crab to avoid exceeding the facility's IPQ use cap.

NMFS notes that IPQ holders would continue to be subject to the IPQ use caps for all processing that does not occur through an exemption from the regional delivery requirements.

This proposed rule includes a reporting requirement to provide NMFS and the Council with the means to assess the exemption in terms of the Council's Statement of Council Intent for Amendment 41. In a crab fishing year when an IFQ holder submits a preseason application for an exemption from the regional delivery requirements, the IFQ holder must also submit an annual Regional Delivery Exemption Report to NMFS by June 30 of that crab fishing year. The Council did not recommend a deadline for submitting the Regional Delivery Exemption Report. To reduce the burden on fishery participants, NMFS is proposing the June 30 deadline to correspond with the end of the crab fishing year and with the deadline for the Eligible Crab Community Organization Annual Report in § 680.5(f).

The proposed rule requires that before IFQ holders submit the Regional Delivery Exemption Report to NMFS, they submit a copy of the report to the community representatives and IPQ holders that also signed the preseason application. NMFS proposes a deadline of June 15 for IFQ holders to take this action. In response to the IFQ holder's report, community representatives and IPQ holders may choose to submit, respectively, a Community Impact Report or IPQ Holder Report. These reports would offer community representatives and IPQ holders an opportunity to provide the Council and NMFS with their perspectives on the framework agreement and exemption contract and to provide an additional viewpoint to the Regional Delivery Exemption Report.

Under the proposed rule, the annual Regional Delivery Exemption Report must include the following: (1) The amount of IFQ, if any, set aside to reduce the need for, and to limit the extent, or amount of, the exemption; (2) the mitigation measures employed before submitting an inseason notice; (3) the number of times an exemption was requested and used; (4) whether the exemption was necessary; and (5) any impacts resulting from the exemption on the fishery participants and communities that signed the preseason application. NMFS is not proposing similar reporting requirements for the Community Impact Report or IPQ Holder Report because these reports are voluntary. The Regional Delivery Exemption Report, Community Impact Report, and the IPQ Holder Report will provide documentation and transparency needed by the Council and NMFS to evaluate the efficacy of privately administered contracts described in this action.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.

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

An RIR was prepared to assess all costs and benefits of available regulatory alternatives. The RIR considers all quantitative and qualitative measures. A copy of this analysis is available from NMFS (see ADDRESSES ). The Council recommended Amendment 41 based on those measures that maximized net benefits to the Nation. Specific aspects of the economic analysis are discussed below in the initial regulatory flexibility analysis (IRFA) section.

An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the proposed action, why it is being considered, and the legal basis for this proposed action are contained in the SUPPLEMENTARY INFORMATION section of the preamble and are not repeated here. A summary of the IRFA follows. Copies of the IRFA are available from NMFS (see ADDRESSES ).

The RIR/IRFA prepared for this proposed rule incorporates by reference an extensive RIR/IRFA prepared for Amendments 18 and 19 to the FMP that detailed the impacts of the CR Program on small entities.

The proposed rule would create a process whereby IFQ holders and IPQ holders who enter an agreement with an ECC entity or community representative may apply for and receive an exemption from regional delivery requirements. Estimates of the number of small entities holding IFQ are based on estimates of gross revenues. During the 2009-2010 fishing season, nine entities held IFQ subject to regional delivery requirements; three of these IFQ holders were small entities. In that same season, 14 of the 22 entities that held IPQ subject to regional delivery requirements were small entities. Six small community entities, including two CDQ entities, would be directly regulated by this action.

The Council considered two alternatives; status quo and the proposed action. The status quo is no exemption from the regional delivery requirements. The proposed action is an exemption from the regional delivery requirements. For the proposed action alternative, the Council considered a number of options to improve the functioning of the exemption and minimize adverse impacts on small entities. The Council also considered and eliminated from further considerations several alternatives that the Council determined would have limited the effectiveness of the exemption in achieving its intended purpose.

The analysis shows that the proposed action minimizes the adverse impacts on small entities from the status quo. All of the directly regulated entities are expected to benefit from this action relative to the status quo alternative because the proposed rule would allow crab to be landed and processed outside the designated region if a circumstance occurs that the directly regulated entities agreed in advance prevents compliance with regional delivery requirements. Allowing for the exemption would potentially reduce deadloss, promote full utilization of the TAC, and improve safety at sea. It is unlikely that any party to the exemption would benefit more than any other because all applicants would have agreed, before the season, to the terms of mitigation and compensation.

The Council considered a number of options to improve the functioning of the exemption and minimize adverse impacts on small entities. The Council considered options that would allow communities benefiting from a ROFR to select a regional representative to act on their behalf rather than the ECC entity. The Council did not choose that option because of the potential difficulties that communities could encounter in selecting the regional representative and because of the additional administrative costs and burdens associated with this option. In addition to providing an expedited administrative process, the approach selected by the Council maintains the original intent of CR Program community protection measures in that it preserves community interests by providing not only a regional linkage for certain PQS, but also a close linkage between certain PQS and the community of origin for that PQS.

The Council also considered and eliminated from further consideration several alternatives during the development of Amendment 41. These alternatives are described in detail in Section 2.2.1 of the analysis for this action (see ADDRESSES ). Generally, the Council perceived these alternatives as limiting the effectiveness of the exemption in achieving its intended purpose.

The Council considered and rejected alternatives in which NMFS would fully administer regional exemptions by determining whether specific conditions existed to qualify for an exemption from the regional delivery requirement. The Council did not advance these alternatives because the Council viewed them as overly expensive to administer and likely to prevent the exemption process from fulfilling its purpose as described in the Council's purpose and need statement for this action. The Council and NMFS recognized that the necessary fact finding to make such a determination (e.g., that a specific amount of ice was prohibiting harvesting or delivery of crab in a specific location) would not only delay decision making, but could also be costly. Verification of conditions could be difficult or impracticable due to the remoteness of the location and poor quality of data available.

A factual finding would require NMFS to not only complete an assessment of the event that arguably prevents a delivery, but also of the potential availability of other processing facilities in the region to overcome the barrier to the delivery. These findings would require factual assessments of circumstances in remote areas. Such findings typically require time, which may jeopardize safety in emergencies, and information, which may not be available to NMFS. In addition, the need for administrative review of these findings could result in additional delays. Consequently, the Council elected to pursue alternatives that would not rely on agency administrative discretion. Instead, the affected parties would define the terms under which they would apply for and receive an exemption. This approach also allows the parties flexibility to develop mitigation and compensation requirements that would, in turn, minimize the need for the exemption and, if an exemption is necessary, ensure that the parties potentially harmed by the exemption receive reasonable compensation.

The Council also considered an alternative that would have defined specific exemption criteria in regulation; however, the Council eliminated this alternative because NMFS and the Council recognized that this approach might be overly restrictive and could not be adapted as circumstances might require. The Council also elected not to recommend an alternative that specifically defined compensation because the Council deemed this alternative too prescriptive to effectively balance the competing interests of parties, which are likely to change with the circumstances surrounding the granting of an exemption. Similarly, the Council chose not to advance alternatives that would redesignate IFQ and IPQ to compensate for landings redirected under the exemption because they would be administratively complex given the inability to rollover IFQ from one year to the next.

NMFS has not identified any duplication, overlap, or conflict between this proposed action and existing Federal rules.

The reporting, recordkeeping, and other compliance requirements would be increased under the proposed rule if parties enter into the agreements and contracts required as part of a completed Application for Exemption from CR Crab Regional Delivery Requirements. This proposed rule adds recordkeeping and reporting requirements necessary to implement Amendment 41, namely submission, prior to the start of the fishing season, of an application and affidavit affirming that IFQ holders, IPQ holders, and community representatives have entered into a framework agreement. A second notice and affidavit affirming that those parties have entered into an exemption contract is required if the parties subject to the framework agreement wish to seek an exemption during the fishing season.

Participation in an Application for Exemption CR Crab Regional Delivery Requirements is voluntary, but would be necessary to deliver crab outside of a designated region when circumstances necessitate an exemption from the regional delivery requirements.

The professional skills necessary to comply with reporting and recordkeeping requirements for small entities impacted by this proposed rule include the ability to read, write, and understand English; the ability to use a personal computer and the Internet; and the authority to take actions on behalf of the designated signatory. Each of the small entities must be capable of complying with the requirements of this proposed rule. Each small entity should have financial resources to obtain additional legal or technical expertise that they might require to advise them concerning the framework agreement or the exemption contract.

IFQ holders that sign a preseason application must also prepare and submit an annual Regional Delivery Exemption Report to the NMFS by June 30. At least 2 weeks prior to submission of the Regional Delivery Exemption Report to NMFS, the IFQ holders must submit a copy of the report to the community representatives and IPQ holders that also signed the preseason application. In response to the Regional Delivery Exemption Report, community representatives may voluntarily submit a Community Impact Report and IPQ holders may voluntarily submit an IPQ Holder Report.

This proposed rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval under OMB Control No. 0648-0514.

Public reporting burden per response is estimated to average 20 hours for the proposed Application for Exemption from CR Crab Regional Delivery Requirements; 5 hours for CDQ Notification of Representative; 20 hours to prepare the Regional Delivery Exemption Report; and 2 hours to complete the Community Impact Report or IPQ Holder Report.

Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these, or any other aspects of the collection of information, to NMFS (see ADDRESSES ) and by email to OIRA_Submission@omb.eop.gov or fax to 202-395-7285.

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

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 680 as follows: