67572 Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Rules and Regulations 

official patrol vessel by siren, radio, 

flashing light, or other means, the 

operator of a vessel must proceed as 

directed. 

(4) Vessel operators desiring to enter 

or operate within the regulated area 

must contact the COTP or the 

designated representative via VHF 

channel 16 or 718–354–4088 (Sector 

New York Vessel Traffic Center) to 

obtain permission to do so. 

Dated: October 26, 2012. 

J.B. McPherson, 

Captain, U.S. Coast Guard, Acting 

Commander, First Coast Guard District. 

[FR Doc. 2012–27490 Filed 11–9–12; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF EDUCATION 

34 CFR Part 280 

[Docket ID ED–2010–OII–0003] 

RIN 1855–AA07 

Magnet Schools Assistance Program 

AGENCY: Office of Innovation and 

Improvement, Department of Education. 

ACTION: Final regulations. 

SUMMARY: This document adopts as final 

a March 2010 interim final rule by 

which the Secretary amended the 

regulations governing the Magnet 

Schools Assistance Program (MSAP) to 

provide greater flexibility to school 

districts designing MSAP programs for 

the FY 2010 competition. The 

amendments removed provisions in the 

regulations that require districts to use 

binary racial classifications and prohibit 

the creation of magnet schools that 

result in minority group enrollments in 

magnet and feeder schools exceeding 

the district-wide average of minority 

group students. We sought comments on 

the amendments because we adopted 

them through an interim final rule. We 

have reviewed the comments we 

received and retain the amendments 

without change for competitions going 

forward. 

DATES: These regulations are effective 

December 13, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Brittany Beth, U.S. Department of 

Education, 400 Maryland Avenue SW., 

Room 4W252, Washington, DC 20202. 

Telephone: (202) 453–6653 or via email: 

brittany.beth@ed.gov. 

If you use a telecommunications 

device for the deaf (TDD) or text 

telephone (TTY), call the Federal Relay 

Service (FRS), toll free at 1–800–877– 

8339. 

Accessible format: Individuals with 

disabilities may obtain this document in 

an accessible format (e.g., braille, large 

print, audiotape, or compact disc) on 

request to the contact person listed 

under FOR FURTHER INFORMATION

CONTACT. 

SUPPLEMENTARY INFORMATION: On March 

4, 2010, the Department published an 

interim final rule (IFR) with a request 

for public comment in the Federal 

Register (75 FR 9777). The IFR, 

applicable only to the FY 2010 

competition, removed provisions in the 

MSAP regulations at 34 CFR 280.2(b)(2), 

280.4(b), and 280.20(g) that required 

districts to use binary racial 

classifications and prohibited the 

creation of magnet schools that result in 

minority group enrollments in magnet 

and feeder schools exceeding the 

district-wide average of minority group 

students. The IFR explained that these 

changes were necessary to permit MSAP 

applicants ‘‘to determine how best to 

meet program requirements while also 

taking into account intervening 

Supreme Court case law, including the 

Court’s decision in Parents Involved in 

Community Schools v. Seattle School 

District No 1 et al., 551 U.S. 701 (2007) 

(Parents Involved).’’ 

In the IFR, the Department also 

invited comments on the removal of the 

regulatory provisions, noting that any 

changes made to the IFR in light of 

comments received would govern future 

MSAP grant competitions. 

Analysis of Comments and Changes 

In response to the Secretary’s 

invitation in the IFR, three parties 

submitted comments on the proposed 

regulations. We make no further 

amendments to the regulations in 

response to the comments; however, an 

analysis of the comments follows. 

Generally, we do not address 

technical and other minor changes or 

suggested changes the law does not 

authorize the Secretary to make. 

Comments: The commenters agreed 

with the decision to remove the 

provisions of the regulations in light of 

the Supreme Court’s decision in Parents 

Involved, but they expressed concern 

about the use of case-by-case decisionmaking when evaluating proposed 

MSAP voluntary desegregation plans. 

The commenters requested additional 

guidance from the Department about 

permissible ways for applicants to 

voluntarily reduce minority group 

isolation after the Court’s decision in 

Parents Involved. The commenters 

suggested replacing the removed 

provisions with more specific language 

in order to assist school districts in 

designing legally permissible voluntary 

desegregation plans. 

Discussion: In the IFR, the 

Department removed the definition of 

‘‘minority group isolation’’ in 34 CFR 

280.4(b). Under the definition, the term 

meant, in reference to a school, ‘‘a 

condition in which minority group 

children constitute more than 50 

percent of the enrollment of the school.’’ 

We removed the definition because it 

required the use of only two racial 

classifications of students—minority 

group and nonminority group students. 

In the absence of a definition of 

‘‘minority group isolation,’’ the IFR 

stated— 

the Department will determine on a case-bycase basis whether a district’s voluntary plan 

meets the statutory purpose of reducing, 

eliminating, or preventing minority group 

isolation in its magnet or feeder schools, 

considering the unique circumstances in 

each district and school. For example, the 

Department may consider whether there is a 

substantial proportion of students from any 

minority group enrolled in a school, looking 

at the student enrollment numbers of the 

district and the targeted schools 

disaggregated by race. 

The Department agrees that at the 

time of publication of the IFR there was 

some confusion for applicants about 

whether the case-by-case analysis would 

be an effective way to evaluate 

voluntary plans under the MSAP. The 

Department recognized the need for 

additional guidance about ways that 

districts can voluntarily reduce minority 

group isolation and promote diversity in 

school districts in light of Parents 

Involved. On December 2, 2011, the 

Departments of Education and Justice 

jointly issued guidance that explains 

how educational institutions can 

lawfully pursue voluntary policies to 

achieve diversity or avoid racial 

isolation within the framework of Titles 

IV and VI of the Civil Rights Act of 

1964, the Equal Protection Clause of the 

Fourteenth Amendment to the U.S. 

Constitution, and current case law. The 

‘‘Guidance on the Voluntary Use of Race 

to Achieve Diversity and Avoid Racial 

Isolation in Elementary and Secondary 

Schools’’ (Guidance) is available on the 

Department’s Web site at http:// 

www2.ed.gov/about/offices/list/ocr/ 

docs/guidance-ese-201111.pdf. 

In light of this Guidance, and based 

on the Department’s experience in 

awarding FY 2010 grants under the 

regulations as amended by the IFR, the 

Department has concluded that it is not 

necessary to propose provisions to 

replace those that were removed by the 

IFR. Applicants are encouraged to use 

the Guidance when designing voluntary 

desegregation plans. 

The Department continues to believe 

that case-by-case decision-making is 


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Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Rules and Regulations 67573 

appropriate so that determinations 

regarding voluntary desegregation plans 

can be made on the unique facts in each 

district. The Department determines on 

a case-by-case basis whether the 

voluntary plans are adequate under 

Title VI of the Civil Rights Act of 1964 

for the purposes of 34 CFR 280.2. We 

also determine whether the proposed 

magnet schools will reduce, eliminate, 

or prevent minority group isolation 

within the period of the grant award, for 

the purposes of sections 280.2(b) and 

280.20(g). These determinations will 

include an examination of the factual 

basis for any proposed increases in 

minority enrollment at district schools. 

For example, the Department might 

consider whether a plan to reduce, 

eliminate, or prevent minority group 

isolation at a magnet school or at a 

feeder school would significantly 

increase minority group isolation at any 

magnet or feeder school in the project at 

the grade levels served by the magnet 

school. In a case in which a school 

district is subject to a desegregation 

order that prohibits magnet or feeder 

schools from exceeding the district-wide 

average of minority group students, the 

district would, of course, continue to be 

bound by that order. 

Changes: None. 

Executive Orders 12866 and 13563 

Under Executive Order 12866, the 

Secretary must determine whether this 

regulatory action is ‘‘significant’’ and, 

therefore, subject to the requirements of 

the Executive order and subject to 

review by the Office of Management and 

Budget (OMB). Section 3(f) of Executive 

Order 12866 defines a ‘‘significant 

regulatory action’’ as an action likely to 

result in a rule that may— 

(1) Have an annual effect on the 

economy of $100 million or more, or 

adversely affect a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local or tribal governments or 

communities in a material way (also 

referred to as an ‘‘economically 

significant’’ rule); 

(2) Create serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impacts of entitlement grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

stated in the Executive order. 

This final regulatory action is not a 

significant regulatory action subject to 

review by OMB under section 3(f) of 

Executive Order 12866. 

We have also reviewed this final 

regulatory action under Executive Order 

13563, which supplements and 

explicitly reaffirms the principles, 

structures, and definitions governing 

regulatory review established in 

Executive Order 12866. To the extent 

permitted by law, Executive Order 

13563 requires that an agency— 

(1) Propose or adopt regulations only 

upon a reasoned determination that 

their benefits justify their costs 

(recognizing that some benefits and 

costs are difficult to quantify); 

(2) Tailor its regulations to impose the 

least burden on society, consistent with 

obtaining regulatory objectives and 

taking into account—among other things 

and to the extent practicable—the costs 

of cumulative regulations; 

(3) In choosing among alternative 

regulatory approaches, select those 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety, 

and other advantages; distributive 

impacts; and equity); 

(4) To the extent feasible, specify 

performance objectives, rather than the 

behavior or manner of compliance a 

regulated entity must adopt; and 

(5) Identify and assess available 

alternatives to direct regulation, 

including economic incentives—such as 

user fees or marketable permits—to 

encourage the desired behavior, or 

provide information that enables the 

public to make choices. 

Executive Order 13563 also requires 

an agency ‘‘to use the best available 

techniques to quantify anticipated 

present and future benefits and costs as 

accurately as possible.’’ The Office of 

Information and Regulatory Affairs of 

OMB has emphasized that these 

techniques may include ‘‘identifying 

changing future compliance costs that 

might result from technological 

innovation or anticipated behavioral 

changes.’’ 

We are issuing these final regulations 

only on a reasoned determination that 

their benefits justify their costs. In 

choosing among alternative regulatory 

approaches, we selected those 

approaches that maximize net benefits. 

Based on the analysis that follows, the 

Department believes that this regulatory 

action is consistent with the principles 

in Executive Order 13563. 

We also have determined that this 

regulatory action does not unduly 

interfere with State, local, and tribal 

governments in the exercise of their 

governmental functions. 

In accordance with both Executive 

orders, the Department has assessed the 

potential costs and benefits, both 

quantitative and qualitative, of this 

regulatory action. The potential costs 

are those resulting from statutory 

requirements and those we have 

determined as necessary for 

administering the Department’s 

programs and activities. 

We discussed the potential costs and 

benefits of these final regulations in the 

interim final rule at 75 FR 9779. 

Paperwork Reduction Act of 1995 

These regulations do not contain any 

information collection requirements. 

Intergovernmental Review 

This program is subject to the 

requirements of Executive Order 12372 

and the regulations in 34 CFR part 79. 

The objective of the Executive order is 

to foster an intergovernmental 

partnership and a strengthened 

federalism by relying on processes 

developed by State and local 

governments for coordination and 

review of proposed Federal financial 

assistance. 

In accordance with the order, we 

intend this document to provide early 

notification of the Department’s specific 

plans and actions for this program. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. Free Internet access to the 

official edition of the Federal Register 

and the Code of Federal Regulations is 

available via the Federal Digital System 

at: www.gpo.gov/fdsys. At this site you 

can view this document, as well as all 

other documents of this Department 

published in the Federal Register, in 

text or Adobe Portable Document 

Format (PDF). To use PDF you must 

have Adobe Acrobat Reader, which is 

available free at the site. 

You may also access documents of the 

Department published in the Federal 

Register by using the article search 

feature at: www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

You may also view this document in 

text or PDF at the following site: 

www.ed.gov/programs/magnet/ 

legislation.html 

(Catalog of Federal Domestic Assistance 

Number 84.165A Magnet Schools Assistance 

Program) 

List of Subjects in 34 CFR Part 280 

Elementary and secondary education, 

Equal educational opportunity, Grant 

programs—education, Reporting and 

recordkeeping requirements. 


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67574 Federal Register / Vol. 77, No. 219 / Tuesday, November 13, 2012 / Rules and Regulations 

Dated: November 7, 2012. 

James H. Shelton, III, 

Assistant Deputy Secretary for Innovation and 

Improvement. 

For the reasons discussed in the 

preamble, the interim final rule 

amending 34 CFR part 280, published at 

75 FR 9777 on March 4, 2010, is 

adopted as a final rule without change. 

[FR Doc. 2012–27559 Filed 11–9–12; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 1206013412–2517–02] 

RIN 0648–BB97 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Reef Fish 

Fishery of the Gulf of Mexico; 

Amendment 35 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

implement management measures 

described in Amendment 35 to the 

Fishery Management Plan for the Reef 

Fish Resources of the Gulf of Mexico 

(FMP) prepared by the Gulf of Mexico 

Fishery Management Council (Council). 

This final rule establishes sector annual 

catch limits (ACLs) and sector annual 

catch targets (ACTs) for greater 

amberjack; revises the sector 

accountability measures (AMs) for 

greater amberjack; and establishes a 

commercial trip limit for greater 

amberjack. Additionally, Amendment 

35 modifies the greater amberjack 

rebuilding plan. The intent of 

Amendment 35 is to end overfishing of 

greater amberjack, modify the greater 

amberjack rebuilding plan and help 

achieve optimum yield (OY) for the 

greater amberjack resource in 

accordance with the requirements of the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act). 

DATES: This rule is effective December 

13, 2012. 

ADDRESSES: Electronic copies of 

Amendment 35, which includes an 

environmental assessment, an initial 

regulatory flexibility analysis (IRFA), 

and a regulatory impact review, may be 

obtained from the Southeast Regional 

Office Web site at http:// 

sero.nmfs.noaa.gov/sf/ 

GrouperSnapperandReefFish.htm. 

FOR FURTHER INFORMATION CONTACT: Rich 

Malinowski, Southeast Regional Office, 

telephone 727–824–5305, email 

rich.malinowski@noaa.gov. 

SUPPLEMENTARY INFORMATION: The reef 

fish fishery of the Gulf is managed 

under the FMP. The FMP was prepared 

by the Council and is implemented 

through regulations at 50 CFR part 622 

under the authority of the MagnusonStevens Act. All greater amberjack 

weights discussed in this rule are in 

round weight. 

On July 3, 2012, NMFS published a 

notice of availability for Amendment 35 

and requested public comment (77 FR 

39460). On July 19, 2012, NMFS 

published a proposed rule for 

Amendment 35 and requested public 

comment (77 FR 42476). The proposed 

rule and Amendment 35 outline the 

rationale for the actions contained in 

this final rule. A summary of the actions 

implemented by this final rule is 

provided below. 

Management Measures Contained in 

This Final Rule 

ACLs and ACTs 

Amendment 35 establishes the greater 

amberjack stock ACL equal to the 

greater amberjack stock allowable 

biological catch (ABC) at 1,780,000 lb 

(807,394 kg), and sets the greater 

amberjack stock ACT at 1,539,000 lb 

(698,079 kg) based on the ACT Control 

Rule developed in the Generic Annual 

Catch Limits/Accountability Measures 

Amendment (Generic ACL Amendment) 

(76 FR 82044, December 29, 2011). 

Sector allocations were established in 

Amendment 30A to the FMP and 

remain unchanged at 27 percent of the 

ACL allocated to the commercial sector 

and 73 percent of the ACL allocated to 

the recreational sector. Based on these 

allocations, this final rule establishes 

specific ACLs for the greater amberjack 

commercial and recreational sectors. 

This final rule also establishes ACTs 

(expressed as quotas in the regulatory 

text) for both sectors. 

This final rule establishes the greater 

amberjack commercial sector ACL at 

481,000 lb (218,178 kg). The commercial 

ACT, which is equivalent to the greater 

amberjack commercial quota, is reduced 

from 503,000 lb (228,157 kg), to 409,000 

lb (185,519 kg). The commercial ACT is 

set 15 percent below the ACL to account 

for management uncertainty. 

This final rule establishes the greater 

amberjack recreational ACL at 1,299,000 

lb (589,116 kg). The recreational ACT, 

which is equivalent to the greater 

amberjack recreational quota, is reduced 

from 1,368,000 lb (620,514 kg), to 

1,130,000 lb (512,559 kg). The 

recreational ACT is set 13 percent below 

the ACL to account for management 

uncertainty. 

AMs 

This final rule revises the AMs for 

both the greater amberjack commercial 

and recreational sectors. The current inseason AM for the greater amberjack 

commercial sector requires the sector be 

closed when commercial landings reach 

or are projected to reach the applicable 

quota (currently equal to the 

commercial ACL). In addition, if despite 

such closure the commercial landings 

exceed the quota, the following year’s 

quota is reduced by the amount of the 

quota overage in the prior fishing year 

(post-season AM). This final rule 

implements an ACT that is less than the 

ACL, creating a buffer between the two. 

The commercial ACT will now be 

equivalent to the commercial quota and 

this final rule requires that the 

commercial sector be closed when the 

commercial ACT is reached or projected 

to be reached. By closing the sector 

when the commercial ACT is reached or 

projected to be reached, there is less 

probability of exceeding the commercial 

ACL. In addition to this revision of the 

in-season AM, this rule revises the postseason AM as follows: If commercial 

landings exceed the commercial ACL, 

then during the following fishing year, 

both the commercial ACT (commercial 

quota) and the commercial ACL will be 

reduced by the amount of the prior 

year’s commercial ACL overage. 

The current in-season AM for the 

greater amberjack recreational sector 

closes the sector when recreational 

landings reach or are projected to reach 

the recreational quota (currently equal 

to the recreational ACL). In addition, if 

despite such closure the recreational 

landings exceed the recreational quota, 

the following year’s recreational quota is 

reduced by the amount of the 

recreational quota overage in the prior 

fishing year, and the recreational fishing 

season is reduced by the amount 

necessary to recover the overage from 

the prior fishing year (post-season AMs). 

This final rule implements a 

recreational ACT, which will now be 

equivalent to the recreational quota, and 

requires that the recreational sector 

close when the recreational ACT is 

reached or projected to be reached. In 

addition to this revision of the in-season 

AM, this final rule revises the postseason AMs as follows: If recreational 

landings exceed the recreational ACL, 

then during the following fishing year, 


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