Executive Order 12866

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this rule meets the applicable standards in § 3 of the Executive Order. In addition, all state and local laws and regulations that conflict with this final rule will be preempted; no retroactive effect will be given to the final rule; and in accordance with § 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures, if any, must be exhausted before litigation against the Department or its agencies may be initiated.

It has been determined that the Regulatory Flexibility Act is not applicable to this rule since the Agency is not required by 5 U.S.C. 551 et seq, or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

This rule contains no additional reporting or recordkeeping burdens under Office of Management and Budget (OMB) control numbers 0572-0107 and 0572-0118 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

This rule will not have any substantial direct effect on states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring the preparation of a Federalism Assessment.

The program described by this rule is listed in the Catalog of Federal Domestic Assistance Programs under number 10.850, Rural Electrification Loans and Loan Guarantees. This catalog is available on the Internet and the General Services Administration's (GSA) free CFDA Web site at http://www.cfda.gov.

This rule is not subject to the provisions of Executive Order 12372, “Intergovernmental Review of Federal Programs,” as implemented under USDA's regulations at 7 CFR part 3015.

Over the last year, the Agency has conducted extensive tribal consultations related to the implementation of the Substantially Underserved Trust Area (SUTA) provisions of the 2008 Farm Bill. During those consultations all RUS programs were discussed. A specific regulation on SUTA is being prepared.

The policies contained in this rule do not impose substantial unreimbursed compliance costs on Indian Tribal governments or have tribal implications that preempt tribal law.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments for the private sector. Thus, this rule is not subject to the requirements of §§ 202 and 205 of the Unfunded Mandates Reform Act of 1995.

This rule has been examined under RUS environmental regulations at 7 CFR part 1794. The Administrator has determined that this rule is not a major Federal action significantly affecting the environment. Therefore, in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), an Environmental Impact Statement or Assessment is not required.

RUS is committed to complying 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.

The Rural Electrification Act of 1936 (7 U.S.C. 901-950b (REAct)), as amended, establishes the authority for RUS to provide loans and loan guarantees to eligible entities for furnishing electric service to rural areas. The standard loan agreement between RUS and its electric borrowers provides that, in accordance with applicable RUS regulations, the borrower shall use standard forms of contracts promulgated by RUS for construction, procurement, engineering services and architectural services for transactions above the established threshold dollar levels (“threshold levels”).

Electric borrowers are also expected to obtain RUS approvals for procuring materials, equipment and contracting services for use in the electric systems where the contract amount exceeds specified threshold levels.

Threshold levels that apply to contracts entered into by borrowers were initially established to capture significant transactions that could adversely affect RUS loan security. The threshold levels were most recently revised in 1995. Cost increases and inflation over time have greatly increased the need for more approvals than is consistent with the earlier threshold levels. The result has been increased delay to the borrowers in receiving RUS approvals and increased workloads at RUS. Inflation is not the only relevant variable in the RUS proposal to modify the threshold levels. In this rule RUS has also considered the level of sophistication in borrowers' operations, RUS staff constraints and competing priorities within RUS. The need to adjust the threshold levels is a result of these considerations.

In response to borrowers' requests and mindful of the directives in Executive Order 13563 of January 18, 2011, to determine if any regulations should be modified to make agencies' regulations less burdensome in achieving their objectives, RUS undertook an examination of certain thresholds used in determining when the use of prescribed forms and approvals would apply. RUS examined the number of contracts it reviewed over the last several years. RUS also reviewed the rate of inflation factors published in the Handy-Whitman Index of Public Utility Construction Costs in order to adjust for inflation occurring after the existing requirements were established.

As a result of this review, RUS determined that although it remains necessary and appropriate to continue these requirements as one means of oversight of its borrowers' financial and operational activities, the existing threshold levels should be raised. Raising these threshold levels will reduce the volume of contracts that borrowers will be required to submit for RUS approvals. Doing so will reduce the paperwork burdens on borrowers and the administrative burdens on RUS.

RUS is revising these threshold levels an average of 300 percent. RUS estimates that the revision will reduce the volume of contracts it receives pursuant to these requirements by 50 percent.

The Agency published a proposed rule on May 17, 2011, at 76 FR 28333 proposing to amend the contract threshold requirements.

RUS received two submissions electronically on this proposed rule by the July 18, 2011, comment deadline. The first submission was received from the National Rural Electric Cooperative Association (NRECA). The submission is summarized below with the Agency's responses as follows:

Issue 1: Commenter proposed that the amounts in the proposed regulation be established as a “base case,” and escalated annually using the Handy Whitman Index of Public Utility Construction Costs.

Response: The Agency does not concur at this time. The Agency believes that the threshold limits set forth are appropriate at this time. The Agency may re-evaluate the threshold limits at a later date.

Issue 2: Commenter proposed a clarifying change that a statement be added to the regulation that a borrower's voluntary use of an RUS form contract when not required by this proposed regulation does not subject the contract to RUS review and approval.

Response: Agency concurs. A clarifying statement is not needed if the RUS form contract is not required.

Issue 3: Commenter proposed allowing a borrower to seek RUS' prior permission to use negotiated bidding in the case where the formal or informal competitive bidding required in 7 CFR 1726.125(b)(2) is not practical.

Response: Agency does not concur. The current rule allows “multiparty negotiations” to be used in 7 CFR 1726.125 (b)(3), which is similar to the comment received to allow “negotiated bidding.”

The second submission was received from Tri-State Generation and Transmission Association, Inc. (Tri-State). Tri-State stated in their submission that “The proposed rules will increase Tri-State efficiency and reduce burdens on Tri-State.” Tri-State also said in their submission that “RUS should adopt the Proposed Rules.”

Response: Agency concurs. The proposed regulation will increase efficiency and reduce burdens on all RUS borrowers.

For reasons set forth in the preamble, RUS amends chapter XVII of title 7 of the Code of Federal Regulations as follows:

The NRC published a final rule in the Federal Register on June 21, 2011 (76 FR 36232), amending the NRC's regulations to incorporate by reference various editions and addenda to the ASME B&PV, and the OM Code. The final rule also incorporated by reference (with conditions on their use) ASME B&PV Code Cases N-722-1 and N-770-1. This document is necessary to correct typographical, formatting, and punctuation errors in both the SOC and the codified text. Also, as published, the final regulations contain errors which may prove to be misleading and need to be clarified. The following corrects the SOC to the June 21, 2011 document:

1. On page 36241, in the second column, third paragraph, the first sentence after Comment is corrected to read as follows:

The NRC should reconsider the change specifying that Section E-1200 is not acceptable.

2. On page 36258, in the third column, the last paragraph, through page 36259, first column, the first paragraph, is corrected to read as follows:

The conditions in § 50.55a(b)(3)(i), (b)(3)(ii), and (b)(3)(iv) continue to apply to the 2005 and 2006 Addenda because the earlier ASME OM Code provisions that these regulations are based on were not revised in the 2005 and 2006 Addenda of the ASME OM Code to address the underlying issues which led the NRC to impose the conditions on the ASME OM Code.

3. On page 36265, in the third column, the third paragraph is corrected to read as follows:

Paragraph (g)(6)(ii)(F)( 10 ) is a new condition as a result of incorporating Code Case N-770-1 in lieu of Code Case N-770. General Note (b) of Figure 5(a) in Code Case N-770-1 permits the use of an alternative examination volume for welds mitigated by optimized weld overlays. This alternative examination volume was not issued as part of the proposed rule and, therefore, this condition in the final rule prohibits the use of the alternative examination volume. While the NRC does not have a technical objection to General Note (b) of Figure 5(a), licensees must obtain NRC authorization to use the alternative examination volume pursuant to 10 CFR 50.55a(a)(3)(i) or (ii).

4. On page 36266, in the second column, second paragraph, the second sentence is corrected to read as follows:

Also, some of the terminology used and some details in this AMP are based on the 1992 Edition.

5. On page 36266, in the third column, first paragraph, the second sentence is revised to read as follows:

A license renewal applicant may either augment its AMPs in these areas, as described in the GALL report, or propose alternatives (exceptions) for the NRC to review as part of a plant-specific program element justification for its AMP. The GALL Revision 1, in AMP XI.M11A, provides an acceptable approach for aging management—through inservice inspection—of PWR nickel-alloy upper vessel head penetration nozzles.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendment to 10 CFR part 50.

The FDIC is charged by Congress with the responsibility for insuring the deposits of banks and thrifts in the United States, and with serving as receiver of such institutions if those banks and thrifts should fail. As of September 30, 2011, the FDIC insured approximately $6.78 trillion in deposits in more than 7,445 depository institutions. To evaluate potential loss severity and to enable it to perform its resolution functions most efficiently, the FDIC is requiring each insured depository institution with $50 billion or more in total assets to submit periodically to the FDIC a Resolution Plan. Currently, 37 insured depository institutions are covered by the Rule. Those institutions held approximately $4.14 trillion in insured deposits or nearly 61 percent of all insured deposits as of September 30, 2011.

In implementing the deposit insurance program and in efficiently and effectively resolving failed depository institutions, the FDIC strengthens the stability of, and helps maintain public confidence in, the banking system in the United States. In its efforts to achieve this objective and to implement its insurance and resolution functions, the FDIC requires a comprehensive understanding of the organization, operation and business practices of insured depository institutions in the United States, with particular attention to the nation's largest and most complex insured depository institutions.

To ensure that the FDIC can effectively carry out these core responsibilities, the Rule requires a limited number of the largest insured depository institutions to provide the FDIC with essential information concerning their structure, operations, business practices, financial responsibilities and risk exposures. The Rule requires these institutions to develop and submit detailed plans demonstrating how such insured depository institutions could be resolved in an orderly and timely manner in the event of receivership. The Rule also makes a critically important contribution to the FDIC's implementation of its statutory receivership responsibilities by providing the FDIC as receiver with the information it needs to make orderly and cost-effective resolutions much more feasible. Based upon its experience resolving failed insured depository institutions (and in particular, large and complex insured depository institutions), the FDIC has concluded that Resolution Plans for large and complex insured depository institutions are essential for their orderly and least-cost resolution and the development of such plans should begin promptly.

Since the recent financial crisis began in late 2008, financial authorities throughout the world have recognized and agreed that advance planning for the resolution of large, complex financial institutions is critical to minimizing the disruption that a failure of such an institution may have as well as the costs of its resolution. At the 2009 Pittsburgh Summit, and in response to the crisis, the G20 Leaders called on the Financial Stability Board (“FSB”) to propose possible measures to address the “too big to fail” and moral hazard concerns associated with systemically important financial institutions. Specifically, the G20 Leaders called for the development of “internationally consistent firm-specific contingency and resolution plans.” The FSB continues its efforts to develop the international standards for contingency and resolution plans and to evaluate how to improve the capacity of national authorities to implement orderly resolutions of large and interconnected financial firms and periodically reports its progress to the G20 Leaders. 2

The FSB's program has built on work undertaken by the Basel Committee on Banking Supervision's Cross-border Bank Resolution Group, co-chaired by the FDIC, since 2007. In its final Report and Recommendations of the Crossborder Bank Resolution Group, issued on March 18, 2010, the Basel Committee emphasized the importance of preplanning and the development of practical and credible plans to promote resiliency in periods of severe financial distress and to facilitate a rapid resolution should that be necessary. In its review of the financial crisis, the Report found that one of the main lessons was that the complexity and interconnectedness of large financial conglomerates made crisis management and resolutions more difficult and unpredictable.

Similarly, the FSB's Principles for Cross-Border Cooperation on Crisis Management commit national authorities to ensure that firms develop adequate contingency plans, including information regarding group structure, and legal, financial and operational intra-group dependencies; the interlinkages between the firms and financial system ( e.g., in markets and infrastructures) in each jurisdiction in which they operate; and potential impediments to a coordinated solution stemming from the legal frameworks and bank resolution procedures of the countries in which the firm operates. The FSB Crisis Management Working Group has recommended that supervisors ensure that firms are capable of supplying in a timely fashion the information that may be required by the authorities in managing a financial crisis. The FSB recommendations strongly encourage firms to maintain contingency plans and procedures for use in a resolution situation ( e.g., factsheets that could easily be used by insolvency practitioners), and to review them regularly to ensure that they remain accurate and adequate. On July 19, 2011, the FSB issued a public consultation on proposed measures to address systemic risk and moral hazard posed by systemically important financial institutions, which includes proposed measures for improved resolution planning by firms and authorities. 3 The Rule supports and complements these international efforts.

In addition, Section 165(d) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd- Frank Act”), 12 U.S.C. 5365(d), adopted July 21, 2010, mandates that each covered company periodically submit to the Board of Governors of the Federal Reserve System (“FRB”), the Financial Stability Oversight Council, and the FDIC the plan of such company for rapid and orderly resolution under the Bankruptcy Code in the event of material financial distress or failure (“DFA Resolution Plan”). This requirement applies to each nonbank financial company subjected to supervision by the Federal Reserve Board under Title I of the Dodd-Frank Act and each bank holding company with assets of $50 billion or more, including foreign bank holding companies with U.S. financial operations.

The Rule is intended to complement the resolution plan requirements of the Dodd-Frank Act. The Rule requires each insured depository institution with $50 billion or more in total assets to submit periodically to the FDIC a contingent plan for the resolution by the FDIC, as receiver, of such institution under the Federal Deposit Insurance Act (“FDI Act”) in the event of the institution's failure. Currently, with the exception of three thrifts covered by the Rule, holding companies of each insured depository institution covered by the Rule are expected to file a DFA Resolution Plan. While a DFA Resolution Plan will describe the plan to resolve each parent holding company under the Bankruptcy Code, the Rule is focused on planning the resolution of the subsidiary insured depository institution, a resolution that will not be conducted under the Bankruptcy Code, but rather will be conducted under the receivership and liquidation provisions of the FDI Act. 4 The Rule sets forth the elements that are expected to be included in an insured depository institution's Resolution Plan. The requirements for DFA Resolution Plans are provided in FRB and FDIC regulations relating thereto (“Section 165(d) rule”). 5

The FDI Act gives the FDIC broad authority to carry out its statutory responsibilities, and to obtain the information required by the Rule. The FDIC's roles as insurer and receiver require a distinct focus on potential loss severities, default risks, complexities in structure and operations, and other factors that impact risk to the Deposit Insurance Fund and the ability of the FDIC to conduct an orderly resolution. The authority to issue the Rule is provided by Section 9(a) Tenth of the FDI Act, 12 U.S.C. 1819(a) Tenth, which authorizes the FDIC to prescribe, by its Board of Directors, such rules and regulations as it may deem necessary to carry out the provisions of the FDI Act or of any other law that the FDIC is responsible for administering or enforcing. The FDIC also has authority to adopt regulations governing the operations of its receiverships pursuant to Section 11(d)(1) of the FDI Act. 12 U.S.C. 1821(d)(1). Collection of the information required by the Rule is also supported by the FDIC's broad authority to conduct examinations of depository institutions to determine the condition of the insured depository institution, including special examinations, 12 U.S.C 1820(b)(3).

The FDIC originally proposed the resolution plan rule through a Notice of Proposed Rulemaking (“NPR”) published in the Federal Register on May 17, 2010. 6 The NPR solicited public comment on all aspects of the NPR. The comment period ended on July 16, 2010, and eight comments were received. On September 21, 2011, the FDIC caused to be published in the Federal Register an Interim Final Rule (the “IFR”). 7 The FDIC invited public comment on all aspects of the IFR and posed specific questions to the public regarding the scope of coverage, definitions of terms used in the IFR, strategic analysis, governance, informational elements and process. The comment period ended on November 21, 2011.

The FDIC received seven comment letters from individuals and banking organizations, as well as industry and trade groups representing the banking, insurance and financial services industry. Six of these comments specifically address provisions of the IFR. The comment letters generally expressed support for the broader goals of the IFR to require CIDIs to provide the FDIC with essential information concerning their structure, operations, business practices, financial responsibilities and risk exposures, and to develop and submit detailed plans demonstrating how such insured depository institutions could be resolved under the FDI Act in an orderly and timely manner in the event of receivership. Some comment letters expressed concern that the IFR did not conform closely enough with the Section 165(d) rule, and others suggested that the Rule more specifically describe certain information that a CIDI must provide. By and large, the comments received fit within several of the categories of questions posed by the FDIC to the public in the IFR. One comment addressed the FDIC's burden estimate. These comments are summarized below.

The IFR requires each insured depository institution with $50 billion or more in total assets to submit periodically to the FDIC a plan for the resolution of such institution in the event of its failure. The $50 billion in asset threshold was an increase from the $10 billion in asset threshold proposed in the NPR although the NPR also required the CIDI to be owned by a holding company with $100 billion or more in assets. One commenter agreed that only insured depository institutions with $50 billion or more in assets should be subject to the Rule while those insured depository institutions with less than $50 billion in assets should not be because their holding company structures and affiliate relationships are simple enough that they would not impede resolution under the FDI Act.

Another commenter advocated a coverage threshold using the aggregate assets of all consolidating and non-consolidating entities in the holding company group in order to mitigate the risk that assets are allocated among smaller entities to avoid being subject to the Rule. This commenter suggested that an insured depository institution should be covered if the group's aggregate assets exceed $50 billion.

One commenter was critical of the inclusion of savings association subsidiaries of savings and loan holding companies because savings associations typically focus on consumer and retail lending rather than commercial banking and do not present the complexity and the kind of threat to the deposit insurance fund or financial system that the Rule attempts to address. This commenter suggests that the rule should be imposed only on savings associations in financial distress, if other factors present a threat to the deposit insurance fund or the economy, or if the parent company has been designated as a systemically important financial institution by the Financial Stability Oversight Council; or, alternatively, only if the savings association is over $50 billion and receives a CAMELS rating of 3 or worse or its parent receives an equivalent low rating. Additionally, this commenter suggests that the FDIC modify the Rule in a manner that would base a subsidiary insured depository institution's duty to file a Resolution Plan upon the requirement that the subsidiary's parent financial company file a DFA Resolution Plan.

With respect to strategic analysis, one commenter suggested that the FDIC consider a recapitalization of a CIDI as an alternative to traditional resolution methods, believing that such a strategy would be more effective during financial panic than would be a liquidation of assets or sale to a third party pursuant to a traditional purchase and assumption agreement. The same commenter recommended eliminating the requirement that the CIDI demonstrate the resolution strategy as “least-costly” because only the FDIC can make such a determination and it does not have to be made until failure. Further, according to this commenter, a requirement that the CIDI demonstrate that the strategy is least costly dissuades the CIDI from considering other resolution strategies as only one strategy could be “least-cost.”

The IFR requires that a Resolution Plan provide a detailed description of the processes the CIDI employs for assessing the feasibility of the plan under idiosyncratic and industry-wide stress scenarios. One commenter requests clarification of this terminology in light of the requirement that the Resolution Plan strategies should take into account that the failure of the CIDI may occur under baseline, adverse and severely adverse economic conditions. This commenter believes that the Rule's reference to “idiosyncratic and industry-wide stress scenarios” be deleted to avoid internal inconsistency and to better harmonize the relevant provisions of the Rule.

Another commenter suggests that the Rule take into account the differences among organizations and the range of strategies that each may consider. This commenter requests that less complex institutions be given the ability to submit streamlined Resolution Plans tailored to nature and risk profile of the CIDI.

The IFR allows a CIDI to submit its initial Resolution Plan assuming the baseline conditions only, or, if a baseline scenario is not then available, a reasonable substitute developed by the CIDI. One commenter believes that the FDIC should not allow a CIDI to submit its initial Resolution Plan assuming the baseline conditions only and recommends that CIDIs be required to assume adverse and severely adverse economic conditions for their initial Resolution Plans in order to increase confidence in, and the integrity of, the resolution planning process.

One commenter recommends adopting language directing CIDIs to identify and discuss “potential barriers to effective resolution and actions to mitigate these” in order to conform to the FSB's key attributes of effective resolution regimes for financial institutions.

One commenter suggests that the Rule clearly permit a committee, rather than a single “senior management official,” to be responsible for development, maintenance, implementation and filing of the Resolution Plan. This commenter suggests that the Rule clarify that it would be appropriate for the CIDI to divide such responsibilities among multiple senior management officials or assign them to a committee, and points out that the Section 165(d) rule recognizes that the responsibility need not be vested in an individual by referring to “senior management official(s)” responsible for resolution planning.

The IFR sets forth a number of informational elements that a CIDI should include in its plan. One commenter notes that the IFR required a description of material effects that any material event may have on the Resolution Plan and summary of changes that are required to the Resolution Plan, whereas the Section 165(d) rule only requires an explanation of why the event may require changes. This commenter recommends that the FDIC not require more detailed information with the notice of material events than would be required under the Section 165(d) rule.

The IFR requires identification in the Resolution Plan of each payment, clearing and settlement system of which a CIDI is a member. A commenter suggests that the Rule require identification of “material” payment, clearing and settlement systems, and recommends that the Rule be conformed to the Section 165(d) rule, which limits disclosure to systems on which a covered company conducts a material number or value amount of trades or transactions.

The same commenter recommends that the Rule qualify the common or shared personnel, facilities, or systems requirements so that the Resolution Plan only need identify “key” common or shared personnel, facilities, or systems. This commenter argues that, without a qualifier, the Rule would require exhaustive lists of personnel and systems that would be of little practical use to the FDIC. The commenter points out the limitation of the scope of a parallel informational requirement in the Section 165(d) rule, which requires identification of interconnections and interdependencies that, if disrupted, would materially affect funding or operations.

This commenter also requests that the requirement to describe non-U.S. components of the CIDI's structure and operations be limited to material or key components because it believes it would be more useful to focus on the assets, operations, interrelationships and exposures that are material to the resolution of the CIDI.

Another commenter thought that the IFR overlooks contingent liabilities for correspondent banking and unfunded lending commitments to government subdivisions and social service agencies. This commenter believes that these entities would suffer if CIDI fails and the receiver repudiates its funding obligation, and such action could lead to public panic or distrust in the event that the agency is unable to find another source of liquidity. This commenter suggests that the reporting of unfunded commitments would enable FDIC to develop an action plan to mitigate the adverse effects resulting from the cessation of funding.

The IFR requires a CIDI to demonstrate its capability to promptly produce the information and data underlying its plan in a format acceptable to the FDIC. One commenter believes that this requirement would be better addressed through the FDIC's ongoing review of Resolution Plans than through a rule-based requirement, and points out how the Section 165(d) rule eliminated a similar data-production requirement in favor of a supervisory approach. This commenter also states that informational requirements are being developed and data capabilities are evolving, and such improvement and evolution should be part of the supervisory process.

One commenter points out several date discrepancies between the IFR and the Section 165(d) rule. First, there is a difference in effective dates between the IFR, which is effective on January 1, 2012, and the Section 165(d) rule, which is effective on November 30, 2011. The commenter believes that the measurement date should be the same to ensure that any company subject to the Section 165(d) rule and any of its subsidiary insured depository institutions subject to the Rule will have the same initial and subsequent Resolution Plan submission dates. A change in size during the gap between effective dates could result in Resolution Plans under the two rules being due on different dates. Second, there is a discrepancy between the plan submission dates for an insured depository institution that becomes subject to the IFR after its effective date and a company that becomes subject to the Section 165(d) rule after its effective date. Under the Section 165(d) rule, a company that becomes covered after the effective date must submit its initial plan by July 1 of the following year, provided that July 1 of the following year is at least 270 days after the date on which the company becomes covered. Under the IFR, an insured depository institution that that becomes covered after the effective date must submit its initial plan by July 1 of the following year, without any proviso ensuring that the CIDI have 270 days from the date it becomes covered to submit its plan. The commenter urges the FDIC to add a similar proviso to the Rule to ensure consistency between the rules and to avoid the potential for different submission dates for a company subject to the Section 165(d) rule and its CIDI subsidiary. Third, it is possible that an insured depository institution that becomes a CIDI after the effective date could have a different initial submission date than if it had been covered as of the effective date because it would presumably have to file on July 1 of the following year, rather than in accordance with the staggered schedule. The commenter suggests that the FDIC use its discretionary authority to permit a new CIDI additional time to submit its initial plan in these circumstances to avoid differential treatment of similarly situated insured depository institutions.

One commenter points out that, under both the IFR and the Section 165(d) rule, CIDIs and covered companies are required to file a notice within 45 days of any event, occurrence, change in conditions or circumstances or other change that results in, or could reasonably be foreseen to have, a material effect on the Resolution Plan. The Section 165(d) rule provides that such notice is not required if the date by which the notice must be submitted is within 90 days of the annual Resolution Plan submission date, while the IFR only provides a 45-day window. The commenter requests that the two requirements be conformed.

A commenter suggests the Rule provide that the FDIC will consult with the appropriate federal banking agency for the CIDI and its parent company before determining that a Resolution Plan is not credible. This commenter also suggests that the Rule provide that the FDIC will consult with the appropriate foreign supervisors, including the relevant home-country supervisor for the foreign-based parent of the CIDI, before issuing any notice of deficiencies, imposing any requirements or restrictions, or taking any other similar remedial action.

One commenter states that, in determining whether a Resolution Plan is credible, the FDIC should consider whether the resolution strategy envisions breaking the entity into subcomponents for sale. This commenter believes that any Resolution Plan that excludes breakup as an option only perpetuates the risk that the Rule intends to mitigate.

One commenter states that the burden on CIDIs whose parent company is not required to file a Resolution Plan under the Section 165(d) rule could be significant and likely exceeds the FDIC's published estimate. Although this commenter does not provide a specific burden estimate, it anticipates that the resources required to produce a Resolution Plan is several times the FDIC's 7,200 hours estimate. The commenter believes the FDIC's estimate may be accurate for CIDIs, whose parent is filing a DFA Resolution Plan, but it does not account for the additional burden on savings associations whose parent would not be filing a DFA Resolution Plan.

The FDIC has carefully considered the comments and has made appropriate revisions to the Rule as described below.

Definitions. Section 360.10(b) defines certain terms, including “core business lines,” “critical services,” “covered insured depository institution,” “parent company,” “parent company affiliate” and “material entity,” which are key definitions in the Rule.

“Core business lines” means those business lines of the CIDI, including associated operations, services, functions and support that, in the view of the CIDI, upon failure would result in a material loss of revenue, profit, or franchise value. The core business lines of the CIDI are valuable assets of the CIDI. The Resolution Plan should provide a strategy for the sale of the core business lines. The Section 165(d) rule contains a similar definition but, for the Section 165(d) rule the core business lines are determined from the perspective of the covered company rather than the CIDI. For example, the CIDI may be providing services to its holding company, such as payment services, that support a business line of its holding company, such as a brokerage service, that is not a core business line of the CIDI. In such example, payment services may be identified as a core business line of the CIDI, while its holding company identifies brokerage services as a business line in its DFA Resolution Plan.

“Covered insured depository institution” means an insured depository institution with $50 billion or more in total assets, as determined based upon the average of the institution's four most recent Reports of Condition and Income or Thrift Financial Reports, as applicable to the insured depository institution. Although several commenters requested changes in the scope of insured depository institutions covered by the Rule, after consideration of those comments, the Rule has not been amended. The FDIC needs the information required by the Rule before an institution is in financial distress. The purpose of the Rule is to enable the FDIC to perform its resolution functions most efficiently through extensive planning in cooperation with the CIDI and to enhance its ability to evaluate potential loss severity if an institution fails. History instructs us that the financial condition of a large institution can deteriorate rapidly, and such deterioration is exacerbated in illiquid markets. Additionally, requiring all insured depository institutions of significant size to focus on resolution planning will focus attention on hidden or nascent deficiencies that healthy institutions may have.

“Critical Services” means services and operations of the CIDI, such as servicing, information technology support and operations, human resources and personnel that are necessary to continue the day-to-day operation of the CIDI. The Resolution Plan should provide for the continuation and funding of critical services. For clarity and to avoid confusion, the term “critical services” differs substantially from the term “critical operations” as used in the Section 165(d) rule. The term “critical operations” is used to designate operations of a covered company the discontinuation of which would pose a threat to the financial stability of the United States. In contrast, the term “critical services” is used in the Rule to mean those functions that must be kept operational during the resolution process to allow the receiver to conduct the resolution in an orderly and efficient manner.

“Parent company” means the company that controls, directly or indirectly, an insured depository institution. In a multi-tiered holding company structure, parent company means the top-tier of the multi-tiered holding company only.

“Parent company affiliate” means any affiliate of the parent company other than the CIDI and subsidiaries of the CIDI. The term is used in identifying the exposures or reliance that the CIDI has on entities in its affiliated group that are not owned or otherwise controlled by the CIDI. In a multi-tier holding company structure, the term includes all holding companies of the CIDI (except the top-tier holding company) and their affiliates (other than the top-tier holding company, the CIDI and subsidiaries of the CIDI).

“Material entity” means a company that is significant to the activities of a critical service or core business line. For example, the legal entity utilized by the CIDI as the contracting entity for a core business line would be a material entity. Also, a subsidiary of the CIDI that provides a critical service would be a material entity.

Resolution Plans to be submitted by the CIDI to the FDIC. Pursuant to Section 360.10(c), the initial filings will be staggered to correspond to the schedule of filings by parent companies under the Section 165(d) rule. This schedule also allows the FDIC to focus on the most complex or largest institutions first. In response to comments on the IFR, the date for calculating total nonbank assets in the Rule has been change to November 30, 2011. The Rule requires the first filing group, which consists of each CIDI whose parent company, as of November 30, 2011, had $250 billion or more in total nonbank assets (or in the case of a parent company that is a foreign-based company, such company's total U.S. nonbank assets), to file their initial Resolution Plans on July 1, 2012. The Rule requires the second filing group, which consists of each CIDI not included in the first group whose parent company, as of November 30, 2011, had $100 billion or more in total nonbank assets (or, in the case of a parent company that is a foreign-based company, such company's total U.S. nonbank assets) to file their initial Resolution Plans on or before July 1, 2013. The Rule requires the third filing group, which consists of the remaining CIDIs, to file their initial Resolution Plans on or before December 31, 2013. The Rule also provides that, on a case-by-case basis, the FDIC may extend, upon request, the implementation and updating time frames of the Rule.

After the initial Resolution Plan is submitted, each CIDI is required to submit a new Resolution Plan annually on or before the anniversary date of the date for the submission of its initial plan.

With respect to an insured depository institution that becomes a CIDI after the effective date of the Rule and in response to comments, the Rule was revised to coincide with the Section 165(d) rule's filing requirement for such an institution's parent. The Rule provides that an insured depository institution that becomes a CIDI after the effective date of the Rule shall submit its initial Resolution Plan no later than the next July 1 following the date the insured depository institution becomes a CIDI, provided such date occurs no earlier than 270 days after the date on which the insured depository institution became a CIDI.

A CIDI is required to file a notice no later than 45 days after any event, occurrence, change in conditions or circumstances or change which results in, or could reasonably be foreseen to have, a material effect on the Resolution Plan of the CIDI. The FDIC desires a notice only when an event results in, or could reasonably be foreseen to have, a material effect on the Resolution Plan of the CIDI such that the Resolution Plan would be ineffective or require material amendment to be effective. A notice is not required if an event does not result in, or could not reasonably be foreseen to have, a material effect on the Resolution Plan of the CIDI. In regard to what constitutes a material effect on the Resolution Plan, the effect on the Resolution Plan should be of such significance as to render the Resolution Plan ineffective, in whole or in part, until an update is made to the plan. A notice should describe the event, occurrence or change and explain why the event, occurrence or change may require changes to the resolution plan. One commenter noted that the IFR provision regarding notice of material event varied from the similar provision in the Section 165(d) rule and requested that the Rule be modified to be consistent with the Section 165(d) rule. The Rule has been modified to be consistent with the Section 165(d) rule with respect to both the content of the notice and the exception, i.e., under the Rule, a CIDI is not required to file a notice of material event within 90 days prior to the date on which it is required to file its annual resolution plan.

Incorporation of data and other information from a Dodd-Frank Act resolution plan. The CIDI may incorporate data and other information from a DFA Resolution Plan filed by its parent company.

Content of the Resolution Plan. Section 360.10(c)(2) requires each CIDI to submit a Resolution Plan that should enable the FDIC to resolve the CIDI in the event of its insolvency under the FDI Act in a manner that ensures that depositors receive access to their insured deposits within one business day of the institution's failure (two business days if the failure occurs on a day other than Friday), maximizes the net present value return from the sale or disposition of its assets and minimizes the amount of any loss realized by the creditors in the resolution in accordance with Sections 11 and 13 of the FDI Act, 12 U.S.C. 1821 and 1823, and specifies the minimum content of the Resolution Plan. The Resolution Plan strategies should take into account that failure of the CIDI may occur under the baseline, adverse and severely adverse economic conditions developed by the FRB pursuant to 12 U.S.C. 5365(i)(1)(B); provided, however, a CIDI may submit its initial Resolution Plan assuming the baseline conditions only, or, if a baseline scenario is not then available, a reasonable substitute developed by the CIDI. While one commenter suggested that a CIDI's first iteration of a Resolution Plan should assume a baseline, adverse and severely adverse economic conditions, the FDIC recognizes the burden that the Rule imposes on CIDIs and the challenge that CIDIs face in preparing their initial Resolution Plans. To reduce this burden, the FDIC is requiring that feasibility for initial Resolution Plans be assessed under only baseline economic condition scenarios. Subsequent Resolution Plans must assess feasibility under adverse and severely adverse economic condition scenarios as well.

The Resolution Plan should include an executive summary that summarizes the key elements of the CIDI's strategic plan for resolution under the FDI Act in the event of its insolvency. After the CIDI files its initial plan, each annual Resolution Plan should also describe material events, such as acquisitions, sales, litigation and operational changes, since the most recently filed plan that may have a material effect on the plan, material changes to the CIDI's Resolution Plan from its most recently filed plan, and any actions taken by the CIDI since filing of the previous plan to improve the effectiveness of its Resolution Plan or remediate or otherwise mitigate any material weaknesses or impediments to the effective and timely execution of the Resolution Plan.

The Resolution Plan should provide the CIDI's, parent company's, and affiliates' legal and functional structures and identify core business lines. A mapping of core business lines, including material asset holdings and liabilities related thereto, to material entities should be provided that identifies which legal entities are utilized in the conduct of such business line. The Resolution Plan should include a discussion of the CIDI's overall deposit activities including, among other things, unique aspects of the deposit base or underlying systems that may create operational complexity for the FDIC or result in extraordinary resolution expenses in the event of failure and a description of the branch organization, both domestic and foreign. Key personnel tasked with managing core business lines and deposit activities and the CIDI's branch organization should be identified.

The Resolution Plan should identify critical services and providers of critical services. A mapping of critical services to material entities and core business lines should be provided that identifies which legal entities are providing the critical services and which business lines are utilizing the critical services. The Resolution Plan should describe the CIDI's strategy for continuing critical services in the event of the CIDI's failure. When critical services are provided by the parent company or a parent company affiliate, the Resolution Plan should describe the CIDI's strategy for continuing critical services in the event of the parent company's or parent company affiliate's failure. The ability of each parent company affiliate providing critical services to function on a stand-alone basis in the event of the parent company's failure should be assessed.

The Resolution Plan should identify the elements or aspects of the parent company's organizational structure, the interconnectedness of its legal entities, the structure of legal or contractual arrangements, or its overall business operations that would, in the event the CIDI were placed in receivership, diminish the CIDI's franchise value, obstruct its continued business operations or increase the operational complexity to the FDIC of resolution of the CIDI. One commenter suggested that the Rule require the CIDI to identify potential barriers or other obstacles to an orderly resolution of the CIDI. The Rule now provides that the CIDI identify potential barriers or other material obstacles to an orderly resolution of the CIDI, interconnections and inter-dependencies that hinder the timely and effective resolution of the CIDI, and include the remediation steps or mitigating responses necessary to eliminate or minimize such barriers or obstacles.

The Resolution Plan should provide a strategy to unwind or separate the CIDI and its subsidiaries from the organizational structure of its parent company in a cost-effective and timely fashion. The Resolution Plan should also describe remediation or mitigating steps that can be taken to eliminate or mitigate obstacles to such separation.

The Resolution Plan should provide a strategy for the sale or disposition of the deposit franchise, including branches, core business lines and major assets of the CIDI in a manner that ensures that depositors receive access to their insured deposits within one business day of the institution's failure (two business days if the failure occurs on a day other than Friday), maximizes the net present value return from the sale or disposition of such assets and minimizes the amount of any loss realized in the resolution of cases. The Resolution Plan should also describe how the strategies for the separation of the CIDI and its subsidiaries from its parent company's organization and sale or disposition of deposit franchise, core business lines and major assets can be demonstrated to be the least costly to the Deposit Insurance Fund of all possible methods for resolving the CIDI as required by Section 13(c)(4)(A) of the FDI Act, 12 U.S.C. 1823(c)(4)(A). One commenter suggested that the Rule should not require the CIDI to demonstrate a strategy is least costly ex ante. The Rules requires the CIDI to propose reasonable resolution options and demonstrate how one is least costly relative to liquidation or other resolution methods. A CIDI can demonstrate a selected strategy is least costly by offering a range of transactions and be ensuring that the transactions are offered broadly to the market, competitive bids are taken and bids are evaluated carefully. The CIDI can apply those strategies, or others it may develop, for demonstrating that the option ultimately selected will be least costly.

Among potential strategies for the payment of depositors that should be considered are: (a) A cash payment of insured deposits, 8 (b) a purchase and assumption transaction with an insured depository institution to assume insured deposits, (c) a purchase and assumption transaction with an insured depository institution to assume all deposits, (d) a purchase and assumption transaction with multiple insured depository institutions in which branches are broken up and sold separately in order to maximize franchise value, and (e) transfer of insured deposits to a bridge institution chartered to assume such deposits, as an interim step prior to the purchase of the deposit franchise and assumption of such deposits by one or more insured depository institutions. 9

Among potential strategies for the sale of core business lines and assets that should be considered are: (a) Retention of some or all of the assets in receivership, to be marketed broadly to eligible purchasers, including insured depository institutions as well as other interested purchasers, (b) sale of all or a portion of the core business lines and assets in a purchase and assumption agreement, to one or more insured depository institutions, and (c) transfer of all or a portion of the core business lines and assets to a bridge institution chartered to continue operating the core business lines and service the assets transferred to it, as an interim step prior to the sale of such core business lines and assets through appropriate marketing strategies. 10

In developing a resolution strategy, each CIDI may utilize one or more of the methods described above, but is not limited to these methods. As suggested by one commenter, a CIDI may consider a post-appointment recapitalization in its Resolution Plan and a CIDI should address this option if it believes a recapitalization would be among the resolution options that are least costly to the deposit insurance fund. Another commenter suggested a breakup of an institution should also be considered. A breakup is a legitimate resolution method and a CIDI may consider that as a resolution option. The resolution strategy should be tailored to the size, complexity and risk profile of the institution.

In addition to the strategic analyses described above, the Resolution Plan should provide a detailed description of the processes the CIDI employs for determining the current market values and marketability of core business lines and material asset holdings, assessing the feasibility of the CIDI's plans, under baseline, adverse and severely adverse economic condition scenarios for executing any sales, divestitures, restructurings, recapitalizations, or similar actions contemplated in the Resolution Plan, and assessing the impact of any sales, divestitures, restructurings, recapitalizations, or other similar actions on the value, funding and operations of the CIDI and its core business lines. This information will allow the FDIC to understand the basis for the valuations included in the Resolution Plan and to consider how those processes could be utilized in a resolution.

Major counterparties should be identified. The CIDI should describe the interconnections, interdependencies and relationships with such major counterparties and analyze whether the failure of each major counterparty would likely have an adverse impact on or result in the material financial distress or failure of the CIDI. The Resolution Plan should describe any material off-balance-sheet exposures (including unfunded commitments, guarantees and contractual obligations) of the CIDI and those exposures should be mapped to core business lines.

The Resolution Plan should identify and describe processes used by the CIDI to determine to whom the CIDI has pledged collateral, identify the person or entity that holds such collateral, and identify the jurisdiction in which the collateral is located; and if different, the jurisdiction in which the security interest in the collateral is enforceable against the CIDI.

The Resolution Plan should describe the practices of the CIDI and its core business lines related to the booking of trading and derivative activities. Each system on which the CIDI conducts a material number or value amount of trades should be identified. Each trading system should be mapped to the CIDI's legal entities and core business lines. The Resolution Plan should identify material hedges of the CIDI and its core business lines related to trading and derivative activities, including a mapping to legal entity. Hedging strategies of the CIDI should be described.

An unconsolidated balance sheet for the CIDI and a consolidating schedule for all material entities that are subject to consolidation with the CIDI should be provided. Amounts attributed to entities that are not material may be aggregated on the consolidating schedule. Financial statements for material entities should be provided. When available, audited financial statements should be provided.

The Resolution Plan should identify each payment, clearing and settlement system of which the CIDI, directly or indirectly, is a member. Membership in each such system should be mapped to the CIDI's legal entities and core business lines. Systems that are immaterial in resolution planning, such as a local check clearing house, do not need to be identified.

The Resolution Plan should provide detailed descriptions of the funding, liquidity and capital needs of, and resources available to, the CIDI and its material entities, which should be mapped to core business lines and critical services. The Resolution Plan should also describe the material components of the liabilities of the CIDI and its material entities and identify types and amounts of short-term and long-term liabilities by type and term to maturity, secured and unsecured liabilities and subordinated liabilities.

The Resolution Plan should describe any material affiliate funding relationships, accounts, and exposures, including terms, purpose, and duration, that the CIDI and any of its subsidiaries have with its parent or any parent company affiliate. All material affiliate financial exposures, claims or liens, lending or borrowing lines and relationships, guaranties, asset accounts, deposits, or derivatives transactions should be described. The description should clearly identify the nature and extent to which parent company or parent company affiliates serve as a source of funding to the CIDI, the terms of any contractual arrangements, including any capital maintenance agreements, the location of related assets, funds or deposits and the mechanisms by which funds can be downstreamed from the parent company to the CIDI and its subsidiaries.

The Resolution Plan should describe systemically important functions that the CIDI, its subsidiaries and affiliates provide, including the nature and extent of the institution's involvement in payment systems, custodial or clearing operations, large sweep programs, and capital markets operations in which it plays a dominant role. Critical vulnerabilities, estimated exposure and potential losses, and why certain attributes of the businesses detailed in previous sections could pose a systemic risk to the broader economy should be discussed.

The Resolution Plan should describe material components of the CIDI's structure that are based or located outside the United States, including foreign branches, subsidiaries and offices. Details should be provided on the location and amount of foreign deposits and assets. The Resolution Plan should discuss the nature and extent of the CIDI's cross-border assets, operations, interrelationships and exposures which should be mapped to legal entities and core business lines.

The Resolution Plan should provide a detailed inventory and description of the key management information systems and applications, including systems and applications for risk management, accounting, and financial and regulatory reporting, used by the CIDI and its subsidiaries. The legal owner or licensor of the systems should be identified. The use and function of the system or application should be described. A listing of service level agreements and any software and systems licenses or associated intellectual property related thereto should be provided. Any disaster recovery or other backup plans should be identified and described. The Resolution Plan should identify common or shared facilities and systems as well as personnel necessary to operate such facilities and systems. Personnel may be identified by a department name or other identifier (for example, the accounting department personnel) when the names of such personnel are retrievable, upon request, using such identifier. The Resolution Plan should also describe the capabilities of the CIDI's processes and systems to collect, maintain, and report the information and other data underlying the Resolution Plan to management of the CIDI and, upon request to the FDIC. Furthermore, the Resolution Plan should describe any deficiencies, gaps or weaknesses in such capabilities and the actions the CIDI intends to take to promptly address such deficiencies, gaps, or weaknesses, and the time frame for implementing such actions.

The Resolution Plan should include a detailed description of how resolution planning is integrated into the corporate governance structure and processes of the CIDI, the CIDI's policies, procedures, and internal controls governing preparation and approval of the Resolution Plan, and the identity and position of the senior management official of the CIDI who is primarily responsible and accountable for the development, maintenance, implementation, and filing of the Resolution Plan and for the CIDI's compliance with this section. One commenter suggested that the Rule be modified to make clear that it would be appropriate if a CIDI were to divide responsibilities among multiple senior management officials or assign them to a committee. While it may be appropriate to divide up the responsibilities, to assure appropriate oversight, the primary responsibility and accountability for the development, maintenance, implementation, and filing of the Resolution Plan and for the CIDI's compliance with this section should be assigned to one senior management official.

The Resolution Plan should describe the nature, extent, and results of any contingency planning or similar exercise conducted by the CIDI since the date of the most recently filed Resolution Plan to assess the viability of or improve the Resolution Plan.

The Resolution Plan should identify and discuss any other material factor that may impede the resolution of the CIDI.

Approval by CIDI's Board of Directors. The CIDI's board of directors must approve the Resolution Plan. Such approval shall be noted in the Board minutes.

Review of Resolution Plan. The FDIC desires to work closely with CIDIs in the development of their Resolution Plans and is dedicating staff for that purpose. The FDIC expects the review process to evolve as CIDIs gain more experience in preparing their Resolution Plans. The FDIC recognizes that plans will vary by institution and, in their evaluation of plans, will take into account variances among institutions in their core business lines, critical operations, foreign operations, capital structure, risk, complexity, financial activities (including the financial activities of their subsidiaries), size and other relevant factors. Each Resolution Plan, however, must be credible. A Resolution Plan is credible if its strategies for resolving the CIDI, and the detailed information required by this section, are well-founded and based on information and data related to the CIDI that are observable or otherwise verifiable and employ reasonable projections from current and historical conditions within the broader financial markets.

Because each Resolution Plan is expected to be unique, the FDIC encourages CIDIs to ask questions and, if so desired, to arrange a meeting with the FDIC. The FDIC expects the initial Resolution Plan will provide the foundation for developing more robust annual Resolution Plans.

After receiving a Resolution Plan, the FDIC will determine whether the submitted plan satisfies the minimum informational requirements of this section. If the FDIC determines that a Resolution Plan is informationally incomplete or that additional information is necessary to facilitate review of the Resolution Plan, the FDIC will return the Resolution Plan to the CIDI and inform the CIDI in writing of the area(s) in which the plan is informationally incomplete or with respect to which additional information is required. The CIDI must resubmit an informationally complete Resolution Plan or such additional information as requested to facilitate review of the Resolution Plan no later than 30 days after receiving the notice described in preceding sentence, or such other time period as the FDIC may determine.

Upon acceptance of a Resolution Plan as complete, the FDIC will review the Resolution Plan in consultation with the appropriate Federal banking agency for the CIDI and its parent company. If, after consultation with the appropriate Federal banking agency for the CIDI, the FDIC determines that the Resolution Plan of a CIDI submitted is not credible, the FDIC will notify the CIDI in writing of such determination. Any notice provided under this paragraph will identify the aspects of the Resolution Plan that the FDIC determines to be deficient.

Within 90 days of receiving a notice of deficiencies issued pursuant to the preceding paragraph, or such shorter or longer period as the FDIC may determine, a CIDI must submit a revised Resolution Plan to the FDIC that addresses the deficiencies identified by the FDIC and discusses in detail the revisions made to address such deficiencies.

Upon a written request by a CIDI, the FDIC may extend any time period under the Rule. Each extension request shall be in writing and describe the basis and justification for the request.

Implementation Matters. In order to allow evaluation of the Resolution Plan, each CIDI must provide the FDIC such information and access to such personnel of the CIDI as the FDIC determines is necessary to assess the credibility of the Resolution Plan and the ability of the CIDI to implement the Resolution Plan. The FDIC will rely to the fullest extent possible on examinations conducted by or on behalf of the appropriate Federal banking agency for the relevant company.

The CIDI's ability to produce the information and data underlying its resolution rapidly and on demand is a vital element in a credible Resolution Plan. While one commenter believes that this requirement would be better addressed through the FDIC's ongoing review of Resolution Plans than through a rule-based requirement, without up-to-date information on the CIDI, the FDIC, as receiver, would be hampered in implementing the Resolution Plan. Therefore, within a reasonable period of time, as determined by the FDIC, after the filing of its initial Resolution Plan, the CIDI must demonstrate its capability to produce promptly, in a time frame and format acceptable to the FDIC, accurate and verifiable data underlying the key aspects of Resolution Plan. The FDIC understands that the capability to produce the data underlying the key aspects of the Resolution Plan will vary by CIDI and, therefore, intends to review and discuss the CIDI's plans to remedy deficiencies as part of their review of a CIDI's initial Resolution Plan. In addition, the Rule has been modified to require the FDIC shall consult with the appropriate Federal banking agency for the CIDI before any finding that the CIDI's capability to produce the information and data underlying its resolution plan is unacceptable.

Notwithstanding the general requirements of this section, on a case-by-case basis, the FDIC may extend, upon notice, the implementation and updating time frames for all or part of the requirements of this section. The FDIC may also, upon application of a CIDI, exempt a CIDI from one or more of the requirements of this section.

No limiting effect on the FDIC as receiver. No Resolution Plan provided pursuant to the Rule shall be binding on the FDIC as supervisor, deposit insurer or receiver for a CIDI or otherwise require the FDIC to act in conformance with such plan.

Confidentiality of Information Submitted Pursuant to this Section. Several commenters requested that the Resolution Plans be treated as exempt from disclosure under the Freedom of Information Act (“FOIA”). The FDIC is aware of and sensitive to the significant concerns regarding confidentiality of Resolution Plans. The Rule contemplates and requires the submission of highly detailed, internal proprietary information of CIDIs. This is the type of information that CIDIs would not customarily make available to the public and that an agency typically would have access to and could review as part of the supervisory process in assessing, for example, the safety and soundness of a regulated institution. In the FDIC's view, release of this information would impede the quality and extent of information provided by CIDIs and could significantly impact the FDIC's efforts to encourage effective and orderly resolution of the CIDIs in a crisis.

Under the Rule, the confidentiality of Resolution Plans is to be assessed in accordance with the applicable exemptions under the FOIA, 5 U.S.C. 552(b), and the FDIC's Disclosure of Information Rule, 12 CFR part 309. The FDIC certainly expects that large portions of the submissions will contain or consist of “trade secrets and commercial or financial information obtained from a person and privileged or confidential” and information that is “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.” This information is subject to withholding under exemptions 4 and 8 of the FOIA, 5 U.S.C. 552(b)(4) and (8).

The FDIC also recognizes, however, that the regulation calls for the submission of details regarding CIDIs that are publicly available or otherwise are not sensitive and should be made public. Unless inextricably intertwined with exempt information, these details would be releasable under the FOIA. The FDIC is concerned that it and the courts could reach inconsistent conclusions regarding which portions of the Resolution Plans contain or consist of reasonably segregable nonexempt information. This uncertainty, in turn, could impact the quality and content of the information provided by CIDIs.

In order to reduce this uncertainty, the Rule requires Resolution Plans to be divided into two sections: a public section and a confidential section. The Rule further specifies the scope and content of the information that is to comprise each section. In the FDIC's view, the details required to be contained in the public section are or should be publicly available. The public section of the Resolution Plan should be segregated and separately identified from the confidential section. The public section will be made available to the public in accordance with the FDIC's Disclosure of Information Rule, 12 CFR part 309.

The confidential section of a Resolution Plan should contain and consist of information that is subject to withholding under one or more of the FOIA exemptions. A CIDI should submit a properly substantiated request for confidential treatment of any details in the confidential section that it believes are subject to withholding under exemption 4 of the FOIA. In addition, the FDIC will have to make formal exemption and segregability determinations if and when a plan is requested under the FOIA.

The public section of the Resolution Plan consists of an executive summary of the Resolution Plan that describes the business of the CIDI and includes, to the extent material to an understanding of the CIDI: (i) The names of material entities; (ii) a description of core business lines; (iii) consolidated financial information regarding assets, liabilities, capital and major funding sources; (iv) a description of derivative activities and hedging activities; (v) a list of memberships in material payment, clearing and settlement systems; (vi) a description of foreign operations; (vii) the identities of material supervisory authorities; (viii) the identities of the principal officers; (ix) a description of the corporate governance structure and processes related to resolution planning; (x) a description of material management information systems; and (xi) a description, at a high level, of the CIDI's resolution strategy, covering such items as the range of potential purchasers of the CIDI, its material entities and core business lines.

In accordance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) (“PRA”), the FDIC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The estimated burden for the reporting and disclosure requirements, as set forth in the Notice of Proposed Rulemaking, is as follows:

Title: Resolution plans required for insured depository institutions with $50 billion or more in total assets.

OMB Number: 3064—New Collection.

Affected Public: Insured depository institutions with $50 billion or more in total assets.

A. Estimated Number of Respondents for Contingent Resolution Plan: 37.

Frequency of Response: Once.

Estimated Time per Response: 7,200 hours per respondent.

Estimated Total Initial Burden: 266,400 hours.

B. Estimated Number of Respondents for Annual Update of Resolution Plan: 37.

Frequency of Response: Annual.

Estimated Time per Response: 452 hours per respondent.

Estimated Total Initial Burden: 16,724 hours.

C. Estimated Number of Respondents for Notice of Material Change affecting Resolution Plan: 37.

Frequency of Response: Zero to two times annually.

Estimated Time per Response: 226 hours per respondent.

Estimated Total Initial Burden: 8,362 hours.

Background/General Description of Collection: Section 360.10 contains collections of information pursuant to the PRA. In particular, the following requirements of the Rule constitute collections of information as defined by the PRA: all CIDIs are required to submit to the FDIC a Resolution Plan that contains certain required information and meets certain described standards; updates to the analysis and plan are required to be submitted annually, with certain notices to be filed more frequently as a result of material changes. The collections of information contained in the Rule are being submitted to OMB for review.

The Regulatory Flexibility Act 5 U.S.C. 601 et seq. (RFA) requires each federal agency to prepare a final regulatory flexibility analysis in connection with the promulgation of a final rule, or certify that the final rule will not have a significant economic impact on a substantial number of small entities. 11 Under regulations issued by the Small Business Administration (“SBA”), a “small entity” includes those firms within the “Finance and Insurance” sector with asset sizes that vary from $7 million or less in assets to $175 million or less in assets. 12 Therefore, insured depository institutions with assets sizes of $175 million or less are considered small entities for purposes of the RFA.

The Rule would apply only to insured depository institutions with $50 billion or more in total assets. The Rule would apply to 37 insured depository institutions upon its effective date. Pursuant to section 605(b) of the Regulatory Flexibility Act, the FDIC certifies that the Rule will not have a significant economic impact on a substantial number of small entities and therefore a regulatory flexibility analysis under the RFA is not required.

The FDIC has determined that the Rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681).

Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat.1338, 1471), requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The FDIC has sought to present the Rule in a simple and straightforward manner.

The Office of Management and Budget has determined that the Rule is not a “major rule” within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 801 et seq. ). As required by SBREFA, the FDIC will file the appropriate reports with Congress and the General Accounting Office so that the Rule may be reviewed.

Section 302 of Riegle Community Development and Regulatory Improvement Act (RCDRIA)  13 generally requires that regulations prescribed by Federal banking agencies which impose additional reporting, disclosures or other new requirements on insured depository institutions take effect on the first day of a calendar quarter which begins on or after the date on which the regulations are published in final form unless an agency finds good cause that the regulations should become effective sooner. The effective date of the Rule is April 1, 2012, which is the first day of the calendar quarter which begins on or after the date on which the regulations are published in final form, as required by RCDRIA.

For the reasons stated above, the Board of Directors of the Federal Deposit Insurance Corporation amends Part 360 of title 12 of the Code of Federal Regulations as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the Federal Register on October 18, 2011 (76 FR 64287). That NPRM proposed to require removing from service all CVD support assemblies and any fan drive shaft on the affected engines if wear is found on either the CVD support ring or the inside diameter of the fan drive shaft.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and the FAA's response to each comment.

One commenter, Embraer Aircraft Maintenance Services, requests that we include engine S/N 994187 in the applicability. They cite the GE All Operators Wire they received as being accurate with the affected engine S/Ns, which includes S/N 994187.

We agree. We added S/N 994187.

One commenter, GE, requests that we allow previous credit for engines with records of prior CVD support assembly replacement and fan drive shaft inspection per the Engine Manual, before the effective date of the AD.

We agree that previous credit should be allowed. Paragraph (e) of the AD requires compliance before accumulating 11,500 total cycles-in-service on the engine, unless already done. We did not change the AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the change described previously.

We estimate that this AD will affect 71 GE CF34-10E series turbofan engines installed on airplanes of U.S. registry. We also estimate that it will take about 8 work-hours per engine to perform a replacement of the CVD support assembly and visual inspections, and that the average labor rate is $85 per work-hour. A replacement CVD support assembly costs about $3,080. We estimate that two fan drive shafts will fail inspection and require replacement. A replacement fan drive shaft costs about $126,900. We estimate that no additional labor costs would be incurred to perform the required part replacements as the replacements are done at time of scheduled engine shop visit. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $520,760.

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on September 28, 2011 (76 FR 59950). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states that:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM.

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

The European Aviation Safety Agency AD requires replacing the fuel pressure regulator within 100 flight hours (FHs) or 6 months after the effective date of that AD, whichever occurs first. This AD requires replacing the fuel pressure regulator within 100 FHs after the effective date of this AD.

We estimate that this AD will affect about 75 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with this AD. The average labor rate is $85 per work-hour. Required parts cost about $180 per product. Based on these figures, we estimate the cost of the AD on U.S. operators to be $26,250.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

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

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 95

Airspace, Navigation (air).

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, February 9, 2012.

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in an FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the, associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:

These final regulations are a supplement to the CEQ regulations implementing NEPA. These final regulations were drafted with the objective of minimizing repetition of requirements already contained in the CEQ regulations and with the understanding that these NASA-specific regulations would be applied with (and be bounded by) the CEQ regulations.

During the public comment period, the following documents were posted on the NASA's NEPA Portal and NEPA Library at http://www.nasa.gov/agency/nepa/ (under News ); the Federal Register Notice of NASA's Proposed Rule with Preamble, Preparers, and More Information on NASA's Categorical Exclusions. The Federal Register Notice (Volume 76, pages 43616-43629) includes a detailed preamble explaining the changes being made to NASA's NEPA regulations. The list of preparers and sample Categorical Exclusions were posted at the request of CEQ. This Federal Register Notice will also be posted on this Web site upon publication.

The proposed rule was published in the Federal Register on July 21, 2011, for a 60-day comment period. No public comments were received. Accordingly, NASA is issuing this rule with minor edits and the changes discussed below.

NASA reviewed the Categorical Exclusions (CatExs) in 1216.304(d) (1)-(5) and identified those CatExs that would require documentation (see 1216.304(d)(4) and (5)). This documentation will support the use of the CatEx for a site- or project-specific proposal, and the periodic review of CatExs stated in 1216.304(g). The reference to NASA's NEPA portal has been added to this subpart indicating where the public can access this subpart, NASA's NEPA policy, NEPA Library, public notices, and the list of NASA's NEPA personnel. NASA also added text to section 1216.302(a)(1) to identify where interested persons can get information or status reports on environmental impact statements and other elements of the NEPA process.

For further clarification NASA is also changing “installation” to “Center” in section 1216.305(b)(2), which describes the activities typically analyzed in an Environmental Assessment, but does not change the scope of the activities covered by that section. NASA “Centers” are the geographic boundaries of land that NASA manages and operates as a land-owner or tenant. NASA has ten Centers, several of which also manage remote locations. This subpart applies to all Centers in their entirety, including the management of remote locations. The Centers are comprised of “facilities”, which are the buildings that contain offices and technical structures; such as wind tunnels, space chambers, launch structures, and laboratories. “Laboratories”, as used in two CatExs, are a specialized type of facility.

In accordance with the CEQ NEPA regulations, 40 CFR 1507.3, NASA has consulted with CEQ regarding these final amendments to the NASA NEPA rule. CEQ has found the amendments are in conformity with NEPA and CEQ regulations.

The revisions to this subpart were included in NASA's retrospective analysis, conducted in accordance with Executive Order 13563, Improving Regulation and Regulatory Review. NASA's Final Plan for Retrospective Analysis of Existing Regulations was published in August 2011 and has been posted on the NASA NEPA portal at http://www.nasa.gov/agency/nepa/regulatoryreview/.

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, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to prepare an initial regulatory flexibility analysis to be published at the time the proposed rule is published. This requirement does not apply if the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities” (5 U.S.C. 603). This rule modifies existing policies and procedural requirements for NASA compliance with NEPA. The rule makes no substantive changes to requirements imposed on applicants for licenses, permits, financial assistance, and similar actions as related to NEPA compliance. Therefore, NASA certifies this final rule would not have a “significant economic impact on a substantial number of small entities.”

This final rule does not contain any information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Council on Environmental Quality regulations do not direct agencies to prepare a NEPA analysis or document before establishing Agency procedures (such as this regulation) that supplement the CEQ regulations for implementing NEPA. Agencies are required to adopt NEPA procedures that establish specific criteria for, and identify, three classes of actions: those that normally require preparation of an environmental impact statement; those that normally require preparation of an environmental assessment; and those that are categorically excluded from further NEPA review (40 CFR 1507.3 (b)). Categorical exclusions are an integral part of agency NEPA implementing procedures, and therefore establishing categorical exclusions does not require preparation of a NEPA analysis or document. Agency NEPA procedures are procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The determination that establishing NEPA implementing regulations does not require NEPA analysis and documentation has been upheld in Heartwood, Inc. v. U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill 1999), aff'd, 230 F.3d 947, 954-55 (7th Cir. 2000).

Executive Order 13132, “Federalism,” 64 FR 43255 (August 10, 1999) requires regulations be reviewed for Federalism effects on the institutional interest of states and local governments, and, if the effects are sufficiently substantial, preparation of the Federal assessment is required to assist senior policy makers. These amendments will affect NEPA compliance procedures, which are not subject to state regulation. The amendments will not have any substantial direct effects on state and local governments within the meaning of the Executive Order. Therefore, no Federalism assessment is required.

Under Section 205 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1533), Federal agencies are required to prepared a budgetary impact statement to accompany any proposed or final rule that included a Federal mandate that may 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 one year. Because the NASA NEPA regulations affect only NASA and do not creation obligations on the part of any other person or government agency, neither state, local or tribal governments nor the private sector will be affected by the amendments to these regulations. There NASA has determined that further review under the Unfunded Mandates Reform Act is not required.

For the reasons stated in the preamble, NASA amends Chapter V of Title 14 of the Code of Federal Regulations by revising subpart 1216.3 of part 1216 as set forth below.

This document contains final regulations that amend the Income Tax Regulations (26 CFR part 1) to reflect amendments made to section 104(a)(2) of the Internal Revenue Code (Code) by section 1605(a) and (b) of the Small Business Job Protection Act of 1996, Public Law 104-188, 110 Stat. 1838 (the 1996 Act). On September 15, 2009, a notice of proposed rulemaking (REG-127270-06) was published in the Federal Register (74 FR 47152). Written comments responding to the notice of proposed rulemaking were received. The comments are available for public inspection at www.regulations.gov or on request. A public hearing was requested and held on February 23, 2010. After consideration of all the comments, the proposed regulations are adopted without substantive change by this Treasury decision. The comments are discussed in the preamble.

The proposed regulations deleted the requirement that to qualify for exclusion from gross income, damages received from a legal suit, action, or settlement agreement must be based upon “tort or tort type rights.” The proposed regulations provided, instead, that the section 104(a)(2) exclusion may apply to damages recovered for a personal physical injury or physical sickness under a statute that does not provide for a broad range of remedies, and that the injury need not be defined as a tort.

A commentator suggested that eliminating the tort type rights test would create confusion about what constitutes a personal injury. The commentator suggested that the regulations should retain the tort type rights test but clarify that meeting the test does not depend on the nature of the remedies or the state law characterization of the cause of action.

The final regulations do not adopt this comment. Before the 1996 amendment, the section 104(a)(2) exclusion was not limited to damages for physical injuries or sickness. The tort-type rights test was intended to distinguish damages for personal injuries from, for example, damages for breach of contract. Since that time, however, Commissioner v. Schleier, 515 U.S. 323 (1995), has interpreted the statutory “on account of” test to exclude only damages directly linked to “personal” injuries or sickness. Furthermore, under the 1996 Act, only damages for personal physical injuries or physical sickness are excludable. These legislative and judicial developments have eliminated the need to base the section 104(a)(2) exclusion on tort cause of action and remedy concepts.

A commentator requested that the final regulations address whether a claimant has constructive receipt or the current economic benefit of a damage award that is set aside for the claimant's benefit in a trust or fund, such as a qualified settlement fund described in § 1.468B-1. Other commentators asked that the final regulations define certain personal injuries as physical injuries and describe the circumstances in which emotional distress is attributable to physical injuries.

The final regulations do not adopt these comments because they are beyond the scope of the proposed regulations, which did not propose rules on the issues raised by the comments. However, these comments will be considered if guidance is published on these topics in the future.

These regulations apply to damages paid pursuant to a written binding agreement, court decree, or mediation award entered into or issued after September 13, 1995, and received after January 23, 2012. This September 13, 1995, effective date derives from an exception set forth in section 1605(d)(2) of the 1996 Act to the statutory effective date of the amendments to section 104(a)(2).

In addition, taxpayers may apply these regulations to amounts paid pursuant to a written binding agreement, court decree, or mediation award entered into or issued after September 13, 1995, and received after August 20, 1996, and if otherwise eligible may file a claim for refund for a taxable year for which the period of limitation on credit or refund under section 6511 has not expired. To qualify for a refund of tax on damages paid after August 20, 1996, under a written binding agreement, court decree, or mediation award entered into or issued after September 13, 1995, a taxpayer must meet the requirements of the 1996 Act, including the requirement that excludable damages must be received on account of personal physical injuries.

This Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. Section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking that preceded these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Sheldon Iskow of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

Background

This document contains temporary regulations under section 871(m). Congress enacted section 871(m) (originally designated as section 871(l)) on March 18, 2010 in section 541 of the Hiring Incentives to Restore Employment Act (HIRE Act), Public Law 111-147 (124 Stat. 71).

Section 871(m) applies to securities loans, sale-repurchase transactions (repos), certain NPCs defined as “specified notional principal contracts” (specified NPCs), and any similar transactions that provide for a payment contingent upon or determined by reference to a U.S. source dividend (dividend equivalent). Section 871(m) treats a dividend equivalent as a dividend from sources within the United States for purposes of sections 871(a), 881, and 4948(a), and chapters 3 and 4 of subtitle A of the Code. Section 871(m) generally applies to any dividend equivalent made after September 14, 2010. With respect to payments made after March 18, 2012, section 871(m)(3)(B) provides that any NPC will be a specified NPC unless the Secretary determines that such contract is of a type which does not have the potential for tax avoidance.

Notice 2010-46, 2010-24 IRB 757, outlined a proposed framework for limiting withholding in the case of a series of securities lending or sale-repurchase transactions. While the Treasury Department and the IRS anticipate issuing proposed regulations addressing the issues raised in Notice 2010-46, these regulations do not address these concerns. See § 601.601(d)(2).

Section 1.871-16T(b) of these temporary regulations incorporates the definition of a specified NPC as provided in section 871(m)(3)(A). These temporary regulations extend the applicability of the section 871(m)(3)(A) statutory definition of a specified NPC through December 31, 2012. Proposed regulations set forth in the notice of proposed rulemaking on this subject in the Proposed Rules Section in this issue of the Federal Register outline the proposed treatment of dividend equivalents under section 871(m) beginning January 1, 2013. The Treasury Department and the IRS believe that an extension of the statutory definition of the term specified NPC is necessary to allow taxpayers and withholding agents to modify their systems and other operating procedures to comply with the rules described in the notice of proposed rulemaking.

These temporary regulations also amend several regulations to clarify the application of section 871(m). For example, temporary regulations modify § 1.863-7 to provide that that section does not apply to a dividend equivalent under section 871(m). Section 1.881-2T(b)(3) provides that section 871(m) and § 1.871-16T apply to dividend equivalents received by foreign corporations. Certain regulations under section 1441 have been amended to require a withholding agent to withhold tax owed with respect to a dividend equivalent.

Notwithstanding these temporary regulations, the Commissioner may challenge transactions that are designed to avoid the application of these rules under applicable judicial doctrines. Nothing in these rules precludes the Commissioner from asserting that a contract labeled as an NPC or other equity derivative is in fact an ownership interest in the equity referenced in the contract.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For the applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the special analyses section of the preamble to the cross-reference notice of proposed rulemaking published in the proposed rules section in this issue of the Federal Register . Pursuant to section 7805(f) of the Code, these temporary regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on the impact on small businesses.

The principal author of these regulations is D. Peter Merkel, the Office of Associate Chief Counsel (International). Other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

Regulatory Information

The Coast Guard is issuing this temporary interim rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because to do so would be contrary to public interest because delayed promulgation may result in injury or damage to the maritime public, vessel crews, the vessels themselves, and law enforcement personnel from protest activities that could occur prior to conclusion of a notice and comment period.

On September 8, 2011, a large protest occurred at the Export Grain Terminal (EGT) in which over 200 protestors were arrested for criminal offenses including assault. These protest activities resulted in damage to rail cars and the cargo they were carrying. The Longview local International Longshore and Warehouse Union (ILWU) has also been subject to fines for contempt of court for engaging in activity that violated a temporary restraining order. Subsequent protest activities aimed at blocking rail access to EGT on September 21, 2011 led to further arrests.

These protest activities arose from a labor dispute between the ILWU, the Port of Longview, and EGT. The dispute is ongoing and picketing activity occurs daily at the EGT facility in Longview, WA. EGT has not yet opened for vessel traffic; however, as recently as November 5, 2011, the president of the ILWU's Local 21, has threatened that protest activities will be mounted when the first vessel arrives to load at EGT's facility.

The schedule of vessel arrivals at EGT is controlled by a number of factors over which the Coast Guard has no control. Additionally, these vessels may be arriving at EGT from foreign ports. Consequently, it is impracticable for grain-shipment vessel arrival schedules to be changed or delayed in order to accommodate a notice of proposed rulemaking and subsequent comment period.

Due to past protest events, threats of similar protest activity in the future, and the significant difficulty and impracticality of changing vessel arrival schedules, the Coast Guard finds it is contrary to the public interest to delay implementation of this safety zone during a notice and comment period. Postponing the promulgation creates a very likely risk that protest activities will threaten safe navigation and the safety of persons and property on the Columbia and Snake rivers when vessels begin arriving at EGT, Longview, WA.

Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register because to do otherwise would be contrary to the public interest since the protest activities associated with EGT are unpredictable and potentially volatile and may result in injury to persons and property. Delaying the effective date until 30 days after publication may mean that grain-shipment vessels will have arrived or departed the Columbia and Snake Rivers before the end of a 30-day period. This delay would eliminate the safety zone's effectiveness and usefulness in protecting persons, property, and the safe navigation of maritime traffic during the transit of grain-shipment vessels that may arrive or depart before 30 days have elapsed.

Although the Coast Guard has good cause to issue this temporary rule without first publishing a proposed rule, you are invited to submit post-promulgation comments and related material regarding this rule through March 1, 2012. All comments will be reviewed as they are received. Your comments will assist us in drafting future rules should they be necessary, and may result in changes to this temporary interim rule before it expires. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) for their Docket Management Facility to process online submissions to Coast Guard dockets. You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

The ILWU, the Port of Longview, WA, and EGT have been engaged in a labor dispute related to the newly-constructed facility. In addition to picketing, ILWU members have engaged in protest activities that have resulted in personal injury and property damage. In particular, a large-scale protest on September 8, 2011 led to arrests for criminal offenses. Additionally, protesters blocked the arrival of the first rail delivery of cargo to the facility. Although the focus of these protests was ashore, there were some waterborne protest activities on the waters adjacent to the EGT piers. The area in which this waterborne protest activity occurred is covered by this safety zone. Although there was no inherent hazard posed by protest vessels in this area before the facility opened for maritime traffic, similar activity may be hazardous for both those protesting and commercial vessel traffic once the terminal begins receiving vessels.

The labor dispute continues, as do the protest efforts. As recently as November 5, 2011, the president of the ILWU's Local 21 threatened that protest activities, similar to those that occurred upon the arrival of the first rail shipment, will be mounted when the first vessel arrives to load at EGT's facility. Once EGT opens for vessel traffic, grain-shipment vessels will be transiting the Columbia and Snake Rivers with cargos of various grain products bound for and departing from EGT at Longview, WA. Based on the past violent protest activities and the ILWU's stated intent to interfere with the inaugural vessel arrival at EGT, Longview, WA, the Coast Guard has determined that a temporary safety zone is required in the area between the shoreline and the navigable channel where the EGT piers and wharves are located.

This safety zone is being implemented to help ensure the safe navigation of maritime traffic in the area around EGT's piers and wharves on the Columbia River and that vessels bound for EGT are able to moor there safely. This safety zone applies equally to all waterway users and is intended to allow maximal use of the waterway consistent with safe navigation and to ensure that protestors are not injured by deep-draft vessels with maneuvering characteristics with which protesters afloat may be unfamiliar.

This rule establishes a temporary safety zone around the Export Grain Terminal located on the Columbia River at the Port of Longview, WA. The safety zone is enclosed by three lines and the shoreline: line one starting on the shoreline at 45-06′01″ N/122-56′25″ W then heading 250 yards offshore to 46-05′55″ N/122-56′30″ W then heading up river 825 yards to 46-05′46″ N/122-56′00″ W then heading 300 yards to the shoreline ending at 46-05′54″ N/122-55′53″ W. Geographically this rule will cover all waters of the Columbia River between the navigable channel and the Export Grain Terminal in Longview, WA. No person or vessel may enter or remain in the safety zone unless authorized by the Captain of the Port, Columbia River or his designated representatives.

This rule is effective from 12:01 a.m. on January 23, 2012 until 12:01 a.m. on April 1, 2012.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). Although this rule will restrict access to the regulated area, the effect of this rule will not be significant because: (i) The safety zone is limited in size; (ii) the official on-scene patrol may authorize access to the safety zone; (iii) the safety zone will only be effective for a limited geographical location over a limited duration; and (iv) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities some of which may be small entities: The owners and operators of vessels intending to operate in the area covered by the safety zone created in this rule.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone is limited in size; (ii) the official on-scene patrol may authorize access to the safety zone; (iii) the safety zone will only be effective for a limited geographical location over a limited duration; and (iv) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them.

We believe that this rule and the process by which it was drafted adhere to the federalism principles outlined in Executive Order 13132. The Coast Guard has coordinated with the officials from the states of Oregon and Washington in drafting this rule. By allowing state enforcement of this rule, it is in accord with paragraph (h) of section 2 of the Executive Order, which encourages recognition of responsibility of localities and their sub-units to pursue objectives through their own means. This rule puts no obligation on state or municipal governments, but simply allows for their participation in enforcement activities.

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

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

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

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

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

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

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

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

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

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

The Coast Guard is issuing this temporary interim rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because to do so would be contrary to public interest because delayed promulgation may result in injury or damage to the maritime public, vessel crews, the vessels themselves, and law enforcement personnel from protest activities that could occur prior to conclusion of a notice and comment period.

On September 8, 2011, a large protest occurred at Export Grain Terminal (EGT) in which over 200 protestors were arrested for criminal offenses including assault. These protest activities resulted in damage to rail cars and the cargo they were carrying. The Longview local International Longshore and Warehouse Union (ILWU) has also been subject to fines for contempt of court for engaging in activity that violated a temporary restraining order. Subsequent protest activities aimed at blocking rail access to EGT on September 21, 2011 led to further arrests.

These protest activities arose from a labor dispute between the ILWU, the Port of Longview, and EGT. The dispute is ongoing and picketing activity occurs daily at the EGT facility in Longview, WA. EGT has not yet opened for vessel traffic; however, as recently as November 5, 2011, the president of the ILWU's Local 21 has threatened that protest activities will be mounted when the first vessel arrives to load at EGT's facility.

The schedule of vessel arrivals at EGT is controlled by a number of factors over which the Coast Guard has no control. Additionally, these vessels may be arriving at EGT from foreign ports. Consequently, it is impracticable for grain-shipment vessel arrival schedules to be changed or delayed in order to accommodate a notice of proposed rulemaking and subsequent comment period.

Due to past protest events, threats of similar protest activity in the future, and the significant difficulty and impracticality of changing vessel arrival schedules, the Coast Guard finds it is contrary to the public interest to delay implementation of this safety zone during a notice and comment period. Postponing the promulgation creates a very likely risk that protest activities will threaten safe navigation and the safety of persons and property on the Columbia and Snake rivers when vessels begin arriving at EGT, Longview, WA.

Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register because to do otherwise would be contrary to the public interest since the protest activities associated with EGT are unpredictable and potentially volatile and may result in injury to persons and property. Delaying the effective date until 30 days after publication may mean that grain-shipment vessels will have arrived or departed the Columbia and Snake Rivers before the end of a 30 day period. This delay would eliminate the safety zone's effectiveness and usefulness in protecting persons, property, and the safe navigation of maritime traffic during the transit of grain-shipment vessels that may arrive or depart before 30 days have elapsed.

Although the Coast Guard has good cause to issue this temporary rule without first publishing a proposed rule, you are invited to submit post-promulgation comments and related material regarding this rule through March 1, 2012. All comments will be reviewed as they are received. Your comments will assist us in drafting future rules should they be necessary, and may result in changes to this temporary interim rule before it expires. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided. We have an agreement with the Department of Transportation (DOT) for their Docket Management Facility to process online submissions to Coast Guard dockets. You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

The ILWU, the Port of Longview, WA, and EGT have been engaged in a labor dispute related to the newly-constructed facility. In addition to picketing, ILWU members have engaged in protest activities that have resulted in personal injury and property damage. In particular, a large-scale protest on September 8, 2011 led to arrests for criminal offenses. Additionally, protesters blocked the arrival of the first rail delivery of cargo to the facility. Although the focus of these protests was ashore, there were some waterborne protest activities on the waters adjacent to the EGT piers.

The labor dispute continues, as do the protest efforts. As recently as November 5, 2011, the president of the ILWU's Local 21 threatened that protest activities, similar to those that occurred upon the arrival of the first rail shipment, will be mounted when the first vessel arrives to load at EGT's facility. Once EGT opens for vessel traffic, grain-shipment vessels will be transiting the Columbia and Snake Rivers with cargos of various grain products bound for and departing from EGT at Longview, WA. Based on the past violent protest activities and the ILWU's stated intent to interfere with the inaugural vessel arrival at EGT, Longview, WA, the Coast Guard has determined that a temporary safety zone is required around vessels bound for and departing from that facility.

This safety zone is being implemented to help ensure the safe navigation of maritime traffic on the Columbia River while grain-shipment vessels transit to and from EGT at Longview, WA. This safety zone applies equally to all waterway users and is intended to allow maximal use of the waterway consistent with safe navigation and to ensure that protestors are not injured by deep-draft vessels with maneuvering characteristics with which protesters afloat may be unfamiliar.

This rule establishes a temporary safety zone around grain-shipment vessels while they are located in the Columbia and Snake Rivers. This safety zone extends to waters 500 yards ahead of grain-shipment vessels and 200 yards abeam and astern of these vessels. No person or vessel may enter or remain in the safety zone without authorization from the Captain of the Port Columbia River or his designated representatives.

This rule is effective from 12:01 a.m. on January 23, 2012 until 12:01 a.m. on April 1, 2012.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). Although this rule will restrict access to the regulated area, the effect of this rule will not be significant because: (i) Individual grain-shipment vessel safety zones are limited in size; (ii) the official on-scene patrol may authorize access to the grain-shipment vessel safety zone; (iii) the grain-shipment vessel safety zone will only be effective for a limited geographical location over a limited duration while grain-shipment vessels transit to berth; and (iv) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities some of which may be small entities: The owners and operators of vessels intending to operate in the area covered by the safety zone created in this rule.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) Individual grain-shipment vessel safety zones are limited in size; (ii) the official on-scene patrol may authorize access to the grain-shipment vessel safety zone; (iii) the grain-shipment vessel safety zone for any given transiting grain-shipment vessel will effect a limited geographical location for a limited time; and (iv) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them.

We believe that this rule and the process by which it was drafted adhere to the federalism principles outlined in Executive Order 13132. The Coast Guard has coordinated with the officials from the states of Oregon and Washington in drafting this rule. By allowing state enforcement of this rule, it is in accord with paragraph (h) of section 2 of the Executive Order, which encourages recognition of responsibility of localities and their sub-units to pursue objectives through their own means. This rule puts no obligation on state or municipal governments, but simply allows for their participation in enforcement activities.

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

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

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

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

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

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

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

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

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

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is contrary to public interest to delay the effective date of this rule. The Coast Guard is establishing the security zone to protect high-ranking government officials, mitigate potential terrorist acts, and enhance public and maritime safety and security. The Coast Guard was unable to publish a NPRM due to the short time period between event planners notifying the Coast Guard of the event and publication of the security zone. Furthermore, delaying the effective date would be contrary to the security zone's intended objectives of protecting high-ranking government officials, mitigating potential terrorist acts and enhancing public and maritime safety security.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Due to the need for immediate action, the restriction of vessel traffic is necessary to protect life, property and the environment, therefore, a 30-day notice period is impracticable. Delaying the effective date would be contrary to the security zone's intended objectives of protecting high-ranking government officials, mitigating potential terrorist acts and enhancing public and maritime safety and security.

The U.S. House of Representatives Democratic Issues Conference will be held at the Hyatt Regency Chesapeake Bay Golf Resort, Spa and Marina in Cambridge, Maryland during January 25-27, 2012. Activities associated with this event include the movement of high-ranking United States officials across the Senator Frederick C. Malkus Memorial (US-50) Bridge at Cambridge, Maryland. The event is located along the waterfront in Cambridge, MD, in close proximity to navigable waterways within the Captain of the Port's Area of Responsibility.

The Coast Guard has given each Coast Guard Captain of the Port the ability to implement comprehensive port security regimes designed to safeguard human life, vessels, and waterfront facilities while still sustaining the flow of commerce. The Captain of the Port Baltimore is establishing this security zone to protect high-ranking government officials, mitigate potential terrorist acts, and enhance public and maritime safety and security in order to safeguard life, property, and the environment on or near the navigable waters.

Through this regulation, the Coast Guard will establish a security zone. The security zone will be in effect from 8 a.m. on January 25, 2012, through 11:59 p.m. on January 27, 2012. The security zone will include all navigable waters of the Choptank River, within 2,000 yards of the Hyatt Regency Chesapeake Bay Golf Resort, Spa and Marina's Breakwater Pavilion, in approximate position latitude 38°33′54″ N, longitude 076°02′47″ W, located in Cambridge, Maryland. In addition, the security zone will include all navigable waters of the Choptank River and Cambridge Channel, within an area bounded on the west by a line drawn between position latitude 38°35′52″ N, longitude 076°03′11″ W and position latitude 38°34′25″ N, longitude 076°04′14″ W and bounded on the east by a line drawn between position latitude 38°35′06″ N, longitude 076°02′27” W and position latitude 38°34′02″ N, longitude 076°03′10″ W. These locations are entirely within the Area of Responsibility of the Captain of the Port Baltimore, as set forth at 33 CFR 3.25-15.

This rule provides that entry into, attempted entry into, or remaining in this security zone is prohibited unless authorized by the Coast Guard Captain of the Port Baltimore. Except for persons or vessels authorized by the Captain of the Port Baltimore, no person or vessel may enter or remain in the regulated area during the effective period. Vessels already at berth, mooring, or anchor at the time the security zone is implemented, however, do not have to depart the security zone. All vessels underway within the security zone at the time it becomes effective are to depart the zone immediately. To seek permission to transit the area, the Captain of the Port Baltimore can be contacted at telephone number (410) 576-2693 or on Marine Band Radio, VHF-FM channel 16 (156.8 MHz). Coast Guard vessels enforcing the security zone can be contacted on Marine Band Radio, VHF-FM channel 16 (156.8 MHz). The Coast Guard will issue Broadcast Notices to Mariners to further publicize the security zone.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this security zone restricts vessel traffic through the affected area, vessels may seek permission from the Captain of the Port Baltimore to enter and transit the zone. Furthermore, the effect of this regulation will not be significant due to the limited size and duration that the regulated area will be in effect. In addition, notifications will be made to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which might be small entities: the owners or operators of vessels intending to operate or transit through or within the security zone during the enforcement period. The security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. The security zone is of limited size and duration. Although the security zone will apply to the entire widths of the Choptank River and Cambridge Channel, traffic may be allowed to pass through the zone with the permission of the Captain of the Port Baltimore. Before the effective period, maritime advisories will be widely available to the maritime community.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We make the following corrections to the Gainful Employment—Debt Measures final regulations:

On page 34460, third column, we correct the phrase “(i.e., 72 percent for 4-year public institutions; 57 percent for 2-year nonprofit institutions; and 56 percent for 4-year nonprofit institutions).” to read “(i.e., 71 percent for 4-year public institutions; 64 percent for 2-year nonprofit institutions; and 61 percent for 4-year nonprofit institutions).”

On page 34461, first column, first paragraph, we correct the sentences “Similarly, in four of the nine models, the proportion of an institution's student body that was represented by students identified as racial/ethnic minorities was a statistically significant predictor. However, in no case did it explain more than approximately 13 percent of variance in repayment rates.” to read “Similarly, in eight of the nine models, the proportion of an institution's student body that was represented by students identified as racial/ethnic minorities was a statistically significant predictor. Across those models, it ranged from explaining 6.5 percent (4-year, for-profit institutions) to 37.8 percent (2-year, nonprofit institutions) of the variance in repayment rates.”

On page 34461, second column, first full paragraph, we correct the phrase “72 percent” to read “71 percent”.

On page 34461, second column, first full paragraph, we correct the sentence “However, when used as a sole predictor, the percentage of Pell Grant recipients was not a statistically significant predictor.” to read “An institution's percentage of minority students explained 29 percent of the variance in repayment rates when used as a sole predictor.”

On page 34461, second column, second full paragraph, we correct the phrase “56 percent” to read “61 percent”.

On page 34461, third column, carryover paragraph, we correct the phrase “less than 2 percent” to read “31 percent”.

On page 34461, third column, first full paragraph, we correct the phrase “22 percent” to read “27 percent”.

On page 34461, third column, first full paragraph, we correct the sentence “The racial/ethnic composition of an institution's student body was not a statistically significant predictor when used alone to model repayment rates, and, although the percentage of students receiving Pell Grants was predictive, it explained only 7 percent of the variance in repayment rates.” to read “Both the racial/ethnic composition of an institution's student body and the percentage of the students receiving Pell Grants were predictive when used alone in separate models, each explaining about 7 percent of the variance in repayment rates.”

On page 34461, third column, second full paragraph, we correct the phrase “13 percent” to read “17 percent”.

On page 34461, third column, second full paragraph, we correct the phrase “(around 1 percent and 3 percent, respectively)” to read “(around 8 percent and 3 percent, respectively)”.

On page 34462, first column, first paragraph, we correct the phrase “57 percent” to read “64 percent”.

On page 34462, first column, second paragraph, we correct the phrase “44 percent” to read “47 percent”.

On page 34462, first and second columns, we correct the sentence “Share of racial/ethnic minority enrollment was not a statistically significant predictor when used in its own model to predict repayment rates.” to read “Share of racial/ethnic minority enrollment explained approximately 19 percent of the variance in repayment rates when used alone in a model to predict repayment rates.”

On page 34462, second column, first full paragraph, we correct the sentences “Overall, our regression model was not statistically significant for less-than-2-year public institutions. When used as the only predictor of repayment rates, share of racial/ethnic minority enrollment was statistically significant, explaining approximately 4 percent of the potential variance. The share of students receiving Pell grants was not statistically significant in its stand alone model.” to read “Overall, none of our regression models was statistically significant for less-than-2-year public institutions.”

On page 34462, second column, second full paragraph, we correct the phrase “39 percent” to read “42 percent”.

On page 34462, second and third columns, we correct the sentence “Share of racial/ethnic minority enrollment was not a statistically significant predictor.” to read “Share of racial/ethnic minority enrollment explained approximately 11 percent of the potential variance.”

On page 34462, third column, first full paragraph, we correct the phrase “27 percent” to read “28 percent”.

On page 34462, third column, first full paragraph, we correct the sentence “The percentage of students identified as racial/ethnic minorities was not statistically significant.” to read “Share of racial/ethnic minority enrollment explained approximately 14 percent of the potential variance.”

On page 34462, third column, second full paragraph, we correct the phrase “1 percent” to read “20 percent”.

On page 34511, first column, paragraph (d), we correct the phrase “And, among 4-year institutions, a measure of institutional selectivity: An institutions acceptance rate (AcceptRate08)” to read “And, among 4-year institutions, measures of part-time (ptfall08cohortretained) and full-time (ftfall09cohortretained) retention.”

On page 34461, Table 4 is corrected to read as follows:

Situated along the Outer Banks of North Carolina, Cape Hatteras National Seashore was authorized by Congress in 1937 and established in 1953 as the nation's first national seashore. Consisting of more than 30,000 acres distributed along approximately 67 miles of shoreline, the Seashore is part of a dynamic barrier island system.

The Seashore serves as a popular recreation destination where visitors participate in a variety of recreational activities. The Seashore also contains important wildlife habitat created by dynamic environmental processes. Several species listed under the Endangered Species Act (ESA), including the piping plover, seabeach amaranth, and three species of sea turtles, are found within the park.

In enacting the National Park Service Organic Act of 1916 (Organic Act) (16 U.S.C. 1 et seq. ), Congress granted the NPS broad authority to regulate the use of areas under its jurisdiction. Section 3 of the Organic Act specifically authorizes the Secretary of the Interior, acting through the NPS, to “make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks * * * .”

Executive Order (E.O.) 11644, Use of Off-road Vehicles on the Public Lands, was issued in 1972 in response to widespread and rapidly increasing off-road driving on public lands “often for legitimate purposes but also in frequent conflict with wise land and resource management practices, environmental values, and other types of recreational activity.” E.O. 11644 was amended by E.O. 11989 in 1977 to add a provision that allows agency heads to immediately close areas or trails to off-road vehicle use if the agency head determines that the use of off-road vehicles will cause or is causing considerable adverse effects on the soil, vegetation, wildlife, wildlife habitat or cultural or historic resources of particular areas or trails on public lands.

Section 3 of E.O. 11644 requires agencies to develop and issue regulations and administrative instructions to provide for administrative designation of the specific areas or trails on public lands on which the use of off-road vehicles may be permitted, and of areas in which the use of off-road vehicles is prohibited. Those regulations are to direct that the designation of such areas and trails be based upon the protection of the resources of the public lands, promotion of the safety of all users of those lands, and minimization of conflicts among the various uses of those lands. They also must require that such areas and trails:

(1) Be located to minimize damage to soil, watershed, vegetation, or other resources of the public lands.

(2) Be located to minimize harassment of wildlife or significant disruption of wildlife habitats.

(3) Be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors.

(4) Not be located in officially designated Wilderness Areas or Primitive Areas. Areas and trails may be located in units of the National Park System only if NPS determines that off-road vehicle use will not adversely affect their natural, aesthetic, or scenic values.

The NPS regulation at 36 CFR 4.10(b) implements the E.O. and requires that routes and areas designated for ORV use be promulgated as special regulations and that the designation of routes and areas shall comply with 36 CFR 1.5 and E.O. 11644. It also states that such routes and areas may be designated only in national recreation areas, national seashores, national lakeshores, and national preserves. The final rule is consistent with these authorities, and with NPS Management Policies 2006, available at: http://www.nps.gov/policy/MP2006.pdf.

Following the establishment of the Seashore in 1937, beach driving was primarily for the purpose of transportation, not recreation. Because the area was sparsely populated, the number of ORVs on the beach was much smaller than it is today. The paving of NC Highway 12, the completion of the Bonner Bridge connecting Bodie and Hatteras islands in 1963, and the introduction of the State of North Carolina ferry system to Ocracoke Island facilitated visitor access to the sound and ocean beaches. Improved access, increased population, and the popularity of the sport utility vehicle have resulted in a dramatic increase in vehicle use on Seashore beaches.

Since the 1970s, ORV use at the Seashore has been managed through various draft or proposed plans. However, none were completed or published as a special regulation as required by 36 CFR 4.10(b). Motivated in part by a decline in most beach nesting bird populations on the Seashore since the 1990s, in July 2007 NPS completed the Cape Hatteras National Seashore Interim Protected Species Management Strategy/Environmental Assessment (Interim Strategy) to provide resource protection guidance with respect to ORVs and other human disturbance until the long-term ORV management plan and regulation could be completed.

In October 2007, a lawsuit was filed by Defenders of Wildlife and the National Audubon Society against the NPS and the U.S. Fish and Wildlife Service challenging the Interim Strategy. The lawsuit alleged the federal defendants failed to implement an adequate plan to govern off-road vehicle use at the Seashore that would protect the Seashore's natural resources while minimizing conflicts with other users. It also alleged that the federal defendants failed to comply with the requirements of the E.O. and NPS regulations regarding ORV use. The lawsuit was resolved in April 2008 by a consent decree agreed to by the plaintiffs, the federal defendants, and the intervenors, Dare and Hyde counties and a coalition of local ORV and fishing groups.

ORV use is currently managed under the consent decree, which also initially established deadlines of December 31, 2010, and April 1, 2011, respectively, for completion of an ORV management plan/environmental impact statement (plan/EIS) and a final special regulation. The Cape Hatteras National Seashore ORV Management Plan/Draft Environmental Impact Statement (DEIS) was released to the public on March 5, 2010, and a 60-day public comment period followed, beginning on March 12, 2010. On December 20, 2010, the Cape Hatteras ORV Management Plan/Final Environmental Impact Statement (FEIS) was completed, and the NPS Southeast Regional Director signed the Record of Decision (ROD) choosing the NPS Preferred Alternative as the Selected Action. The public was informed of the availability of the FEIS and ROD through notice in the Federal Register on December 28, 2010. The FEIS, the ROD, and other supporting documentation can be found online at the NPS Planning Environment and Public Comment (PEPC) Web site at http://www.parkplanning.nps.gov/caha.

In March 2011, the NPS notified the parties to the litigation and the U.S. District Court for the Eastern District of North Carolina (Court) that the final rule would not be completed by the original April 1, 2011, consent decree deadline. The Court has since issued two orders modifying the consent decree to extend the deadline for the effective date of the final rule which is now February 15, 2012.

On July 6, 2011, NPS published a Notice of Proposed Rulemaking for the management of ORVs at Cape Hatteras National Seashore (76 FR 39350). On July 6, 2011, NPS also published the “Benefit-Cost Analysis of Proposed ORV Use Regulations in Cape Hatteras National Seashore” online at the Seashore's public planning Web site at http://www.parkplanning.nps.gov/caha.

The proposed rule for off-road vehicle management was based on the Selected Action as described in the ROD for the FEIS. The proposed rule was available for public comment from July 6, 2011 through September 6, 2011. However, Hurricane Irene made landfall in the area of the Seashore on Saturday August 27, 2011, resulting in widespread damage along the Outer Banks of North Carolina and along the east coast into New England. Because the hurricane may have prevented some affected persons from commenting on the rule by the September 6 deadline, NPS reopened the public comment period on September 9, 2011, and extended the deadline to midnight on September 19, 2011.

Comments were accepted through the mail, hand delivery, and through the Federal eRulemaking Portal at http://www.regulations.gov. A total of 21,302 comment documents were received. A summary of comments and NPS responses is provided below, followed by a table that sets out section-by-section the changes NPS has made from the proposed rule in this final rule based on the analysis of the comments.

1. Comment: By allowing ORV use at the Seashore, the proposed rule fails to meet the mandates of the Organic Act of preserving and protecting flora, fauna, historic objects, and scenery.

Response: NPS and the courts have consistently interpreted the Organic Act and its amendments as providing that resource conservation shall predominate over visitor recreation, in the event of a conflict between the two. However, the Organic Act gives NPS broad authority and discretion to manage these sometimes conflicting goals and to determine how visitor activities, including recreational activities, may be managed to avoid or minimize impacts to natural and cultural resources. The General Authorities Act, which amended the Organic Act, requires NPS to manage all units as part of a single National Park System for the purpose set out in the Organic Act. Other laws and policies also support NPS's decision to manage recreational use at the Seashore. The laws also give NPS the management discretion to allow impact to park resources and values when necessary and appropriate to fulfill the purposes of a park, as long as the impact does not constitute impairment of the affected resources and values. (NPS Management Policies 2006, Section 1.4.3)

2. Comment: By allowing ORV use on large portions of the Seashore, the proposed rule fails to comply with the Seashore's enabling legislation, which said that no plan for the convenience of visitors shall be undertaken that is incompatible with the preservation of the park's unique flora and fauna and physiographic conditions.

Response: The Seashore's enabling legislation states in 16 U.S.C. 459a-1 that “the administration, protection, and development” of the Seashore shall be exercised “subject to the provisions of the NPS Organic Act.” Accordingly, recreation must be managed in a manner to provide for resource conservation. NPS Management Policies require the NPS to manage activities in the park unit to avoid impairing resources, to avoid or minimize unacceptable resource impacts, and to strive to restore the integrity of park resources that have been damaged or compromised in the past.

The Selected Action, upon which the rule is based, is consistent with this mandate, and is also consistent with the enabling legislation's mandate to preserve the unique flora and fauna and physiographic conditions. Among other things, it specifically provides for actions to preserve sensitive and protected species during important lifecycle stages, thus ensuring their preservation.

3. Comment: Implementing ORV restrictions such as vehicle-free areas is in conflict with Section 3 of E.O. 11644 because these restrictions severely limit the variety of access opportunities available for visitors and increase the potential for conflicts among users in the areas that remain open to recreational use.

Response: Section 3 of E.O. 11644 states that the designation of ORV routes “will be based upon the protection of the resources of the public lands, promotion of the safety of all users of those lands, and minimization of conflicts among the various uses of those lands.” It does not address or restrict the designation of vehicle-free areas. Nonetheless, in the plan/EIS, NPS has sought to provide for a variety of access opportunities through the designation of ORV routes, as well as providing pedestrians with some vehicle-free areas. Part of the purpose of developing the plan/EIS, as stated in the FEIS, was “to provide a variety of visitor use experiences while minimizing conflicts among various users,” which the NPS believes the plan and rule have accomplished.

This rule designates more than half of the ocean beach mileage in the Seashore as seasonal or year-round ORV routes, in addition to 18 soundside access routes, providing a substantial amount of vehicular access. The remaining ocean beach and sound shoreline would be closed to ORV use, which provides a more primitive, vehicle-free visitor experience at the Seashore. The rule also includes measures such as carrying capacity restrictions, reduced speed limits, and parking requirements to reduce the potential for conflicts among Seashore visitors.

4. Comment: This regulation conflicts with E.O. 11644 and E.O. 11989, which allow the designation of ORV routes in areas of the National Park System only if the agency determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values. Driving on the beach clearly adversely impacts these values of the Seashore.

Response: The NPS interprets and implements the E.O. term “adversely affect” in a manner that is consistent with similar requirements in its NPS Management Policies 2006, under which NPS only allows “appropriate use” of parks, and avoids “unacceptable impacts.” This rule is consistent with those requirements. It will not impede the attainment of the Seashore's desired future conditions for natural and cultural resources as identified in the FEIS. This rule will not unreasonably interfere with the atmosphere of peace and tranquility or the natural soundscape maintained in natural locations within the Seashore. Within the context of the resources and values of the Seashore, ORV use on the ORV routes designated by this rule (which are also subject to resource closures and other species management measures that will be implemented under the Selected Action in the ROD) will not cause an unacceptable impact to the natural, aesthetic, or scenic values of the Seashore. Therefore, this rule is consistent with E.O. 11644 and E.O. 11989. A more detailed explanation of this determination is provided in the “Compliance with Other Laws and Executive Orders” section of this rule.

5. Comment: All ORVs should be banned within the Seashore.

Response: This rule implements the December 2010 ROD, which, following input from the public during development of the EIS, allowed for continued ORV use. ORV use is a historical use at the Seashore that has been accounted for in various planning documents, including the Seashore's 1984 General Management Plan, which states, “Selected beaches will continue to be open for ORV recreational driving and in conjunction with surf fishing in accordance with the existing use restrictions.”

Furthermore, prohibition of ORV use at the Seashore would not have met the stated purpose, need, and objectives of the plan/EIS. The purpose of the plan was to “develop regulations and procedures that carefully manage ORV use/access in the Seashore to protect and preserve natural and cultural resources and natural processes, provide a variety of visitor use experiences while minimizing conflicts among various users, and promote the safety of all visitors * * * .” ORV use, if effectively managed, provides convenient access for many appropriate visitor activities at some popular beach sites including, for example, activities that use vehicles to transport substantial amounts of gear for the activity. Prohibition, rather than management, of ORV use could substantially diminish such visitor experience opportunities. Therefore, prohibiting all ORV use would not have met the need as described in the plan.

6. Comment: The proposed rule should refer to the Seashore as “Cape Hatteras National Seashore Recreational Area” because this is the name that was established through the enabling legislation. The name of the Seashore cannot be changed except by an act of Congress, and removing “Recreational Area” from the name changes the original purpose of the Seashore.

Response: On June 29, 1940, Congress amended the 1937 authorizing legislation for “Cape Hatteras National Seashore” to permit hunting. The same amendment also changed the formal title of the park to “Cape Hatteras National Seashore Recreational Area,” in order to distinguish it from more traditional types of parks where all hunting was generally prohibited, and avoid setting a precedent for other parks.

NPS had already defined a “national seashore” as a recreational area in its 1937 brochure explaining the Park, Parkway, and Recreational Study Act, and the anticipated recreational purposes of the park were established by Congress through Acting Secretary of the Interior Oscar L. Chapman's letter to the House Committee on Public Lands. Thus, including the term “recreational area” in the title was redundant.

In 1954, NPS authorized the original park name (“national seashore”) to be used for all administrative purposes except for formal memoranda and documents requiring the full legal name. Subsequently, the term “recreational area” fell from use in most official references to the park. In 1961, Congress authorized Cape Cod in Massachusetts as the second “national seashore” and subsequently created eight more “national seashores” between 1962 and 1975, for a total of ten. All such park units that followed Cape Hatteras were officially named “national seashores.”

Since 1962, Cape Hatteras has been referred to as “national seashore” in all Congressional legislation and “national seashore” has been the standard nomenclature for this type of park. In any event, this nomenclature question is irrelevant to this rule and the ORV plan. The General Authorities Act of 1970 and the 1978 Redwoods Amendment expressly clarified that all units of the National Park System are to be managed to the same statutory standards and authorities. Furthermore, the NPS motor vehicle regulation at 36 CFR 4.10 does not recognize a “national seashore recreational area” unit designation as one of the types of units where ORV use is permitted.

7. Comment: The proposed rule violates E.O. 13132 by not providing a federalism summary impact statement.

Response: The proposed rule is consistent with E.O. 13132. It does not have federalism implications that require a federalism summary impact statement. The rule governs the use of federally owned land in the Seashore by individual Seashore visitors. It does not have a substantial direct effect on the State of North Carolina (or any other state), on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

8. Comment: The proposed rule violates E.O. 13474, which amended E.O. 12962, specifically section (d), which directs Federal agencies to ensure that recreational fishing shall be managed as a sustainable activity in national wildlife refuges, national parks, national monuments * * * or any other relevant conservation or management areas or activities under Federal authority, consistent with applicable law. The ORV management plan harms recreational fishermen the most.

Response: E.O. 12962 (1995), as amended by E.O. 13474 (2008), directs Federal agencies, “to the extent permitted by law,” to improve the quantity, function, sustainable productivity and distribution of U.S. aquatic resources for increased recreational fishing opportunities. It further directs Federal agencies to ensure that recreational fishing shall be managed as a sustainable activity in national wildlife refuges, national parks or any other relevant conservation or management areas or activities under any Federal authority, “consistent with applicable law.” Numerous laws require NPS to conserve wildlife and other natural and cultural resources unimpaired for the enjoyment of future generations and to contribute to the protection and recovery of migratory birds and federally listed threatened or endangered species. As stated in Chapter 1 of the FEIS, these laws include the Organic Act, the Seashore's enabling legislation, the Migratory Bird Treaty Act, and the ESA. In addition, as discussed above, E.O. 11644 (1972), E.O. 11989 (1977), and NPS regulation 36 CFR 4.10, impose additional requirements on the management of ORV use, if it is allowed.

The proposed rule is “consistent with applicable law” and places no direct constraints on recreational fishing. Its focus is to authorize ORV use at the Seashore, manage it to protect and preserve natural and cultural resources and natural processes in accordance with applicable laws, and provide a variety of safe visitor experiences while minimizing conflicts among various users. To the extent that management of ORV use would impact fishing and other recreational uses of the Seashore, those impacts were analyzed during the preparation of the plan/EIS.

9. Comment: The proposed rule will negatively impact primitive wilderness within the Seashore and does not address Congress's goal of preserving “primitive wilderness” at the Seashore as directed in the park's enabling legislation.

Response: The Seashore's 1937 enabling legislation, which indicated that areas not developed for recreational uses “shall be permanently reserved as a primitive wilderness,” predates the Wilderness Act of 1964, which established the National Wilderness Preservation System and created a process through which Congress formally designates “wilderness areas”. At this time, there are no such proposed or designated “wilderness areas” in the Seashore. The Seashore's enabling legislation authorizes NPS to provide infrastructure and facilities for visitors in selected areas, as needed to support recreational use ( e.g., parking areas, day-use facilities for beach-goers, lifeguarded beaches, boat launch areas, campgrounds, and ORV ramps), while leaving other areas undeveloped in order to retain their primitive character. The Seashore has many undeveloped areas that are preserved and further protected under the Selected Action and this rule. However, since none of these areas are currently designated or proposed wilderness, the ORV management plan/EIS did not address preserving wilderness under the 1964 Act. A study to explore the suitability of designating areas at the Seashore as wilderness is outside the scope of this planning effort and will be addressed during a future process to develop a new General Management Plan for the Seashore.

10. Comment: The exclusion of specific fixed-distance, mandatory buffers for wildlife and other natural resource protection in the proposed rule violates the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). By excluding those species protections from the rule, the proposed rule is outside the range of alternatives considered within the FEIS (and specifically the Selected Action, Alternative F, as detailed in the ROD) and has not undergone the “hard look” required by NEPA. By implementing this new alternative that was not studied in the FEIS, the proposed rule violates the APA's notice and comment requirements, and applicable E.O.s and regulations.

Response: The proposed rule is based directly on the Selected Action described in the FEIS and ROD. The rule contains those portions of the Selected Action, such as the designated ORV routes and other ORV management requirements, that NPS believes are necessary to comply with the E.O.s and NPS regulations. The species management strategies for the Selected Action, as described in the FEIS, are intended to evolve over time, through the periodic review process, in order to ensure accomplishment of the desired future conditions for park resources as stated in the plan. In response to these comments, NPS has revised the wording of § 7.58(c)(10) to more clearly articulate its commitment to the implementation of the species management strategies and periodic review process described in the Selected Action.

11. Comment: NPS and DOI are in violation of NEPA and the E.O.s because they did not publish the full extent of the proposed restrictions in the Federal Register and did not provide ample documentation, review time, and meetings or other forms of education for the public.

Response: Not every aspect of ORV management at the Seashore is appropriate for inclusion in this rule; this is why NPS developed an ORV management plan. As discussed above, NPS has already developed an ORV management plan and chosen its Selected Action in the ROD. (This Selected Action was the NPS Preferred Alternative in the FEIS.) As part of the NEPA planning process, the NPS published the DEIS, FEIS, and the ROD on the NPS PEPC Web site at http://www.parkplanning.nps.gov/caha prior to publishing the proposed rule.

This rulemaking process is governed by the APA and not by that NEPA process, which is now complete. As required by the APA, the NPS published the proposed regulation in the Federal Register (76 FR 39350) on July 6, 2011. As stated in that notice of proposed rulemaking, the purpose of the rule was to implement the Selected Action from the ROD. As required by the APA, the public has had the opportunity to review and comment on those aspects of ORV management that are actually being addressed in the regulation.

This public participation under the APA is in addition to the extensive public participation that has already occurred through the NEPA process and the negotiated rulemaking process. The public participation process is summarized on p. 27 of the FEIS and the expected impact of the proposed alternatives, including the various restrictions proposed in each alternative, is described in “Chapter 4: Environmental Consequences,” pp. 325-638 of the FEIS. A complete list of documents, public participation notices, and other information for the project has been and still is available on the NPS PEPC Web site at http://parkplanning.nps.gov/caha . (See “Cape Hatteras National Seashore Off-Road Vehicle Negotiated Rulemaking and Management Plan/EIS” project page, “Document List.”)

The APA does not require an agency to conduct public hearings for this type of rulemaking process. However, as part of the NEPA process, the NPS:

• Conducted public informational meetings in February and March of 2007 during public scoping on the plan/EIS, conducted additional informational meetings in January and February 2008 to examine the range of alternatives and seek input on alternative elements;

• Accepted public comments each day during 20 days of negotiated rulemaking advisory committee meetings; and

• Conducted five public hearings during the public comment period on the DEIS, as described on p. C-1 of the FEIS.

12. Comment: The proposed rule does not adequately address the Migratory Bird Treaty Act, the ESA, or the Unfunded Mandates Reform Act (UMRA).

Response: The Selected Action in the ROD, which is the basis for this rule, gave extensive consideration to the protection of migratory birds and federally listed threatened or endangered species. The U.S. Fish and Wildlife Service also reviewed the FEIS and drafted a Biological Opinion which concurred with the NPS Determination of Effect on protected species and provided revisions that were included in the ROD. A detailed analysis of the impacts of the management alternatives on threatened or endangered species is provided in Chapter 4, pp. 347-491 of the FEIS. Please see the paragraph entitled Unfunded Mandates Reform Act in the “Compliance with Other Laws and Executive Orders” section of this preamble for explanation regarding consistency with UMRA.

13. Comment: The proposed rule makes no mention of the America's Great Outdoors Initiative.

Response: The America's Great Outdoors Initiative (AGO) is a program to encourage stewardship and recreational use of public lands. AGO vision statements include the following:

• All children, regardless of where they live, have access to clean, safe outdoor places within a short walk of their homes or schools, where they can play, dream, discover, and recreate. Americans participate in the shared responsibility to protect and care for our unique natural and cultural heritage for the use and enjoyment of future generations.

• Our national parks, national wildlife refuges, national forests, and other public lands and waters are managed with a renewed commitment to sound stewardship and resilience.

• Our natural areas and waterways, whether publicly or privately owned, are reconnected, healthy, and resilient and support both human needs and the wildlife that depend on them.

AGO does not provide specific guidance related to NPS ORV management decisions and does not supersede or modify the laws, regulations, and E.O.s that apply to ORV management at the Seashore.

The rule is necessary to implement the Selected Action identified in the ROD, to bring the Seashore in compliance with the E.O.s and with NPS laws, regulations (36 CFR 4.10), and policies to minimize impacts to Seashore resources and values. Under the Selected Action, NPS will provide visitors to the Seashore with a wide variety of access opportunities for both ORV and pedestrian users, with controls or restrictions in place to limit impacts on sensitive resources. NPS believes implementation of this rule will be consistent with AGO's vision of stewardship and appropriate recreational use of public lands.

14. Comment: Subjecting vehicles to search and inspection for equipment and requiring individuals to partake in an in-person education program to obtain a permit violates E.O. 12988 (Civil Justice Reform).

Response: As described in the “Compliance with Other Laws and Executive Orders” section of this preamble, the provisions of this rule are consistent with E.O. 12988. Note, however, that E.O.12988 generally applies only to civil matters, and violations of this regulation, as with other NPS regulations, would be criminal matters to which this E.O. does not apply.

15. Comment: The rule does not comply with the following:

• Regulatory Flexibility Act. There was not adequate consideration given to economic impacts, both direct and indirect, nor to cumulative impacts of small businesses on the islands.

• Antideficiency Act. The rule makes forward looking statements about infrastructure improvements which NPS claims will lessen the economic impacts. There are no funds in the NPS appropriated budget to pay for these improvements.

• Architectural Barriers Act of 1968. A large number of those submitting comments on the DEIS specifically expressed concerns about people with disabilities and others who are unable to walk long distances and would no longer be able to enjoy the Seashore.

Response: Under 5 U.S.C. 605(b), the Regulatory Flexibility Act permits an agency to certify that a proposed rule would not have a significant economic impact on a substantial number of small entities, if the preliminary analysis supports such a decision. NPS performed the required economic analysis and provided the above certification in the proposed rule. NPS provided the Office of Management and Budget (OMB) with the proposed rule before publication in the Federal Register . OMB reviewed and commented on the rule, and approved its publication, indicating that it was consistent with applicable regulatory requirements under its purview.

NPS has included infrastructure and access improvements as an integral part of the ORV plan and regulation, and anticipates that funding for construction of the improvements will come from appropriated NPS program funds such as “Line Item Construction,” “Repair and Rehabilitation,” or from the Seashore's recreation fees, or from grants. Consistent with the Antideficiency Act, no funds have been obligated or expended for this purpose in excess of appropriations or in advance of their receipt.

The Architectural Barriers Act of 1968, as amended, 41 U.S.C. 4151 et seq., imposes standards on buildings constructed under several types of federal nexus. The rule, which designates routes for ORV use, does not require the construction of any buildings, so the Act does not apply.

16. Comment: NPS has failed to adequately address or even recognize the economic impact of the rule. The Region of Influence (ROI) is incorrectly identified. Analysis at the county-wide level masks the impacts that would occur in the Seashore villages, and northern communities such as Kill Devil Hills and Southern Shores should not be included in the ROI.

Response: To gather data for the socioeconomic analysis, NPS conducted a survey of businesses in the Seashore villages and in Kill Devil Hills, Nags Head, and Kitty Hawk. In the business survey, some of the businesses in the three villages north of the Seashore reported that beach closures to ORVs would affect their revenue and would cause revenue losses in the future, so it is not inaccurate to include these communities in the ROI. However, it is true that other businesses in the three northern communities reported that ORV restrictions would have no impact on their business. Since some businesses in the three northern communities reported impacts in the survey, NPS felt it was important to include those in the analysis. To estimate the portion of the economic output in Dare and Hyde counties generated in the ROI, and, within the ROI, the amount generated in the Seashore villages, NPS adjusted the county-level values by the percentages of employment by business section. NPS fully agrees that the impacts will fall mainly on the Seashore villages. For this reason, NPS reported the range of revenue impacts used to calculate the impacts for each alternative separately for the Seashore villages and the rest of the ROI. To measure the economic impacts of the alternatives, NPS used “IMPLAN,” a computer software program that simulates how changes in sales and employment in one industry can affect other industries and the regional economy as a whole. Although the results from running the IMPLAN model are presented at the county level, the discussion of each alternative stated that the Seashore villages would experience the majority of the direct impacts. In the discussion of the impacts on small businesses, NPS stated that the impacts will be larger for businesses that depend on visitors who use particular beach access ramps or visit particular beaches that will be closed or restricted under the alternative. The conclusion for each alternative reiterated that the Seashore villages will experience the majority of the impacts and that small businesses may be disproportionately impacted. The analysis forecasts higher adverse impacts on the small businesses than for the ROI as a whole.

In initial meetings shortly before the negotiated rulemaking committee was officially formed and in early meetings with the committee, NPS was told that the economic impacts would be widespread. Members of the local community urged NPS to consider the impacts on Dare County, the State of North Carolina, and neighboring states. NPS chose to narrow the ROI to just the island portions of Dare and Hyde counties, and assessed the resulting indirect and induced impacts on Dare and Hyde counties as a whole.

NPS released the results of these studies and updated relevant sections of the FEIS to reflect them. It is an acceptable NEPA planning practice for newly available results of studies that were not available at the time a DEIS is written to be incorporated in the FEIS. NPS would have prepared a supplemental DEIS for review if there was significant new information relevant to environmental concerns and bearing on the proposed action and its impacts (40 CFR 1502.9(c)(1)(ii)). In this case, however, the study findings were consistent with the analysis already provided in the DEIS.

17. Comment: The economic analysis for the proposed rule is flawed because it does not address the “ripple effect” to the local economy and is based on faulty assumptions about visitor spending.

Response: NPS obtained relevant data for impact analysis using IMPLAN, an economic model that specifically calculates the “ripple effect” that changes in direct spending by visitors have on other sectors of the economy. According to generally accepted economic theory (Boardman, 1996), these ripple effects should be included in benefit/cost analyses only if they are large enough to change prices in affected markets. Although NPS had no information about possible changes in prices, NPS chose to err on the side of representing all relevant impacts and included these ripple effects in the analysis of impacts. Therefore, NPS believes its analysis of these ripple effects is adequate.

18. Comment: Since the proposed rule raised OMB legal or policy issues, OMB may also have concerns about the rulemaking process.

Response: As required by federal regulatory procedures, before NPS published the proposed rule in the Federal Register , OMB reviewed the proposed rule and the “Benefit-Cost Analysis of Proposed ORV Use Regulations at Cape Hatteras National Seashore” and approved the publication of the proposed rule. OMB also reviewed the final rule and the “Benefit-Cost Analysis of Final ORV Use Regulations at Cape Hatteras National Seashore” and approved the final rule for publication in the Federal Register .

19. Comment: The ORV permit requirements should require approval by OMB.

Response: The NPS special park-use permit program allows for a variety of activities including, but not limited to, ORV use, special events, recreational activities, commercial filming and agricultural use, to be authorized through a permit. The Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) requires that OMB review and approve forms used by agencies to collect information used by the Superintendent to make an informed decision whether to approve or deny a permit request. OMB has approved NPS use of application forms until June 2013 and issued an approval number of 1024-0026. Prior to their expiration, NPS will initiate the renewal process, which will include publishing a Federal Register notice soliciting public comments on the current applications.

20. Comment: The public was denied opportunities to comment on the economic impact analysis, including the benefit-cost analysis, during the ORV management planning and rulemaking processes.

Response: The DEIS, which was developed and open to public comment through the NEPA process, contained a socioeconomic impact analysis of the proposed management alternatives (Chapter 4, pp. 561-568). The DEIS was open to public review and comment for 60 days, during which NPS received numerous comments on the analysis. A separate report titled “Benefit-Cost Analysis of Proposed ORV Use Regulations in Cape Hatteras National Seashore” was prepared, as required, for the proposed rule and posted online at http://www.parkplanning.nps.gov/caha, on July 6, 2011, the same date the proposed rule was published in the Federal Register . The public's opportunity to comment on the proposed rule included the ability to comment on the benefit-cost analysis and other documents and studies that were used to form the basis for the rule.

21. Comment: The small business survey conducted for the proposed rule was not completed and published before the public comment period, and therefore there was insufficient time for public review and comment. Several local businesses were never consulted or contacted and the estimates are based upon flawed sample data.

Response: NPS contracted with RTI International to conduct a small business survey to provide information for the preparation of the FEIS. A representative cross-section of businesses was surveyed, but not all businesses. This is standard methodology for such a survey. RTI also conducted a survey of Seashore visitors and conducted counts of vehicles using the ocean-side beach access ramps and counted visitors using selected beaches at the Seashore. The results of these studies were incorporated into the plan/FEIS, and the reports were made available to the public on December 23, 2010 when they were posted on the RTI Web site at http://rti.org/publications/publications.cfm and on the NPS PEPC Web site at http://www.parkplanning.nps.gov/caha . The Seashore issued a press release on December 23, 2010, announcing the availability of these reports. It is not unusual for newly available results of studies that were not available at the time a DEIS is written to be incorporated into the FEIS. The NPS would have prepared a supplemental EIS (with an accompanying public comment period) for review if there was significant new information relevant to environmental concerns and bearing on the proposed action and its impacts (40 CFR 1502.9(c)(1)(ii)). In this case, however, the study findings did not provide significant new information and were consistent with the analysis provided in the DEIS. Therefore, a supplemental EIS was not prepared. The public was given the opportunity to comment on any completed studies or data used in the planning process during the public comment periods for the DEIS and the proposed rule.

22. Comment: The economic impact requirement of $100 million is not a fair measurement for the area and should be decreased based on the area to which the proposed rule will apply.

Response: Under E.O. 12866, agencies are required to submit an economic analysis of certain “significant” regulations to the OMB. E.O. 12866 establishes a number of different criteria under which a regulation is determined to be “significant”. The economic impact threshold level of $100 million for analyzing impacts of the rule is one of those criteria. Another criterion for determining that a regulation is “significant” for purposes of triggering OMB review under the E.O. is whether a regulation raises novel legal or policy issues. This rule was determined to be significant because it was determined that it raised novel legal or policy issues. The $100 million threshold was not the basis for which this rule was reviewed under Executive Order 12866 and had no impact on the level of analysis and review that this rule received.

23. Comment: The economic impact analysis is flawed because there is limited information regarding the number of vehicles or visitors that accessed the Seashore before increased access restrictions, which began in 2003, several years before the Interim Strategy. Without information before 2003, the baseline assessment is skewed.

Response: Reliable data on the number of ORVs using Seashore beaches before 2003 was not available and is not directly relevant to this study. As part of the NEPA planning process, NPS developed a set of alternatives for management of ORVs in the Seashore that included two no-action alternatives (the Interim Strategy and the consent decree) and four action alternatives, and identified Alternative F as the NPS Preferred Alternative in the plan/EIS. The Interim Strategy was implemented in 2006-2007 and the consent decree was implemented in 2008-2010, while the plan/EIS was being developed. These no-action alternatives implemented in 2006-2010 serve as the baseline for comparison of the action alternatives, including the NPS Selected Alternative F that is the basis for this rule. Section 2.3 of the “Benefit-Cost Analysis of Proposed ORV Use Regulations in Cape Hatteras National Seashore” describes how NPS evaluated visitation and ORV use information for the range of management alternatives considered in the plan/EIS. NPS believes that the methodology and information sources described in the benefit-cost analysis provide an adequate basis for assumptions about baseline visitation.

24. Comment: The ecosystem and the associated tourism play an important role in the economy of the Seashore. Protection of this environment would be beneficial to the Seashore's economy.

Response: While the economic analysis of this rule did not quantify potential benefits from the protection of the Seashore's ecosystems and the environment resulting from the proposed actions, the FEIS did account qualitatively for these benefits, which were considered in choosing the NPS Preferred Alternative as the Selected Action in the ROD, upon which this rule is based.

25. Comment: The four areas of the Seashore that the North Carolina Beach Buggy Association had proposed as potential Traditional Cultural Properties (TCPs) were not considered by NPS during the ORV management planning and rulemaking processes. The National Historic Preservation Act (NHPA) of 1966 requires Section 106 review as part of the NEPA process.

Response: As required by Section 106 of the NHPA, NPS consulted with the North Carolina Department of Cultural Resources, State Historic Preservation Office (SHPO), during the NEPA process. The SHPO sent a letter to the Seashore on April 6, 2010, which indicated that it had reviewed the DEIS under Section 106 of the NHPA, that it was aware of “no historic resources which would be affected by the project,” and that it had no comments. The Seashore has also completed a number of studies meant to identify historic resources, including a Historic Resource Study, an Ethnohistorical Description of the Eight Villages Adjoining Cape Hatteras National Seashore, and an Ethnographic Study Analysis of Cape Hatteras National Seashore. While preparing the plan/EIS, NPS determined the areas ineligible as TCPs and provided its determination to the SHPO, which offered no opinion.

26. Comment: It was not necessary for the NPS to consult with the Tuscarora Indian tribe since Tribal members never lived at Cape Hatteras.

Response: The Presidential Memorandum of April 29, 1994 and E.O. 13175 on Consultation and Coordination with Indian Tribal Governments require NPS to maintain a government-to-government relationship with federally recognized tribal governments. In this case, the Seashore is mandated to consult with the Tuscarora Indian Tribe, since it is the only federally recognized tribe affiliated with the Seashore.

27. Comment: Since Pea Island is technically owned by the NPS (although controlled by U.S. Fish and Wildlife Service), it should be included as a vehicle-free area in the Seashore.

Response: Pea Island National Wildlife Refuge (Refuge) is administered by the U.S. Fish and Wildlife Service, and NPS does not direct the management of visitor use at the Refuge. Therefore, NPS regulations (including the designation of ORV routes) do not apply at the Refuge.

28. Comment: The proposed rule does not reflect the will of the people that was expressed during the public hearings and comment period for the DEIS. A large percentage of the people who spoke during the public comment period preferred that ORV and pedestrian access take priority over resource protection. Why were those numbers not considered more in the proposed rule?

Response: While the majority of the members of the public who spoke at the DEIS public hearings supported ORV access over resource protection, statements made at the hearings represent only a subset of the over 15,000 pieces of correspondence that NPS received on the DEIS. Under NEPA, all comments are considered with equal weight, regardless of whether they were handwritten, electronic, or spoken.

NPS received thousands of comments supporting increased ORV access and thousands calling for increased resource protection with greater restriction of ORV use than NPS had proposed. Although NPS reviewed and considered these comments and made changes to the Preferred Alternative based on them, the decision to revise the Preferred Alternative was based on the substance and merit of the comments, not merely the number of comments received. The NPS must base its decision on applicable legal authorities and policies, available scientific information, and other substantive concerns, not the relative popularity of one alternative over another. These changes were subsequently reflected in the FEIS and the Selected Action in the ROD, which formed the basis for this rule.

29. Comment: NPS should not accept form letters orchestrated and submitted by advocacy groups or comment letters on the proposed rule that failed to comply with NPS requirements that all comments include the agency name and the Regulation Identifier Number (RIN) in the body of the comments.

Response: The purpose of emphasizing the use of the identification information was to ensure that comments made their way to the appropriate place for consideration, analysis, and response. The agency name and RIN information were automatically included in all comments that were received through the Federal eRulemaking Portal at http://www.regulations.gov . Comments that were mailed or hand delivered to the Seashore in accordance with the stated deadlines were accepted with or without the RIN, as long as they were clearly applicable to the proposed ORV rule at the Seashore.

30. Comment: Supporting documents, public comments, and transcripts of public hearings should have been added to the public docket posted at http://www.regulations.gov, as they contain information relevant to the proposed rule.

Response: The proposed rule was based directly on the Selected Action identified in the ROD, which was developed through the NEPA process. As stated in the July 6, 2011, Federal Register notice for the proposed rule, the FEIS, the ROD, and other supporting documentation can be found online at http://www.parkplanning.nps.gov/caha and are part of the public record for the plan/EIS.

31. Comment: NPS should create an advisory committee of local residents, ORV representatives, and local officials to work with NPS in determining future resource closures, dates for seasonal ORV restrictions, ORV route boundaries, and other ORV management matters.

Response: Creating a standing ORV management advisory committee under the Federal Advisory Committee Act (FACA) was considered but dismissed as a reasonable alternative during the preparation of the plan/EIS. Section 2(b)(2) of FACA restricts the establishment of such committees to situations “when they are determined to be essential.” The NPS does not believe a standing advisory committee is essential because this rule, once established, will provide the framework for ORV management at the Seashore.

When NPS did establish a negotiated rulemaking advisory committee to assist NPS in developing alternatives for the ORV management plan and rule, the committee represented a wide range of interests, and accordingly their points of view were often contradictory. That committee was unable to reach consensus on the matters before it. Therefore, due to the extremely polarizing nature of ORV use at the Seashore, there would be a strong probability that a similar ORV management committee would not be able to provide NPS with clear and consistent actionable advice, and managing the committee would require a commitment of staff time and funding that could not be sustained over the life of the plan.

32. Comment: The comment period should have been extended 30 to 60 days because of Hurricane Irene.

Response: The 60-day public comment period for the proposed rule opened on July 6, 2011, and closed on September 6, 2011. With 11 days remaining in the comment period, Hurricane Irene struck the Outer Banks area early on Saturday, August 27, 2011. Thousands of public comments had been received before the hurricane reached the Outer Banks. On September 9, 2011, NPS published a Federal Register notice announcing it would reopen the public comment period until September 19 to allow more time ( i.e., 13 more days) for those who may have been affected by Hurricane Irene to submit comments. NPS acknowledges that many Outer Banks residents, property owners, and businesses were impacted by Hurricane Irene, and believes that reopening the comment period for the length of time described above was an appropriate response to the circumstances.

33. Comment: Numerous commenters proposed various changes to the designated routes, including adding more year-round vehicle-free areas or increasing vehicular access to popular fishing areas.

Response: Comments on designated ORV routes in the proposed rule were nearly identical to those received on the DEIS. While finalizing the FEIS, NPS thoroughly considered these comments and made revisions to the NPS Preferred Alternative, which was the Selected Action in the ROD and formed the basis for this rule. NPS believes this process has identified an equitable balance of vehicle-free areas and ORV routes that provides for both resource protection and a variety of visitor experiences. Further information on how NPS considered and designated routes and areas can be found in the FEIS (p. C-115).

34. Comment: NPS should reduce the size of the buffer distances used to protect beach nesting wildlife so that closures are smaller and recreational access is allowed along the shoreline past the nesting areas.

Response: Resource closures are established to provide each protected species with access to key habitat during critical points in its annual cycle. As described in the FEIS, the buffer distances are intended to provide adequate protection to minimize the impacts of human disturbance on nesting birds and chicks in the majority of situations, given the level of visitation and recreational use in areas of sensitive wildlife habitat at the Seashore and issues related to noncompliance with posted resource protection areas.

The buffer distances were developed after consideration of the best available science, which includes existing guidelines and recommendations, such as the Piping Plover Recovery Plan (USFWS 1996a) and the U.S. Geological Survey (USGS) Open-File Report 2009-1262 (2010), also referred to as the “USGS protocols,” on the management of species of special concern at the Seashore, as well as relevant scientific literature (research, studies, reports, etc. ). In addition, buffer distances were developed using the practical knowledge gained by NPS resources management staff during two years of implementing the Interim Strategy (2006-2007) and three years implementing the consent decree (2008-2010).

35. Comment: The Selected Action, Alternative F, was biased toward environmental concerns, rather than recreation.

Response: The Selected Action, as described in the ROD, includes the combination of ORV routes and requirements and species management strategies that best addresses the stated purpose, need, and objectives of the plan/EIS. NPS is obligated under its Organic Act and the Seashore's enabling legislation to ensure that the Seashore's beach nesting wildlife species are sufficiently protected from the impacts of ORV use and human disturbance to ensure that those species are conserved and remain unimpaired for the enjoyment of future generations.

As stated in NPS Management Policies 2006, Section 1.4.3, Congress recognizes that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired. Congress has therefore provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to predominate. This is how courts have consistently interpreted the Organic Act.

36. Comment: The species protection measures are based on incomplete science such as the “USGS protocols,” which are not peer reviewed science.

Response: NPS guidelines require that all scientific and scholarly information disseminated to the public in any format meets the requirements of NPS Director's Order 11-B: Ensuring Quality of Information Disseminated by the National Park Service, which may require peer review for activities and information used in the decision-making process. However, there is no requirement that all information used in a NEPA document be peer reviewed.

The FEIS does not state that the USGS protocols are the primary source of information used in the plan. NPS used a multitude of sources in the development of the species protection strategies contained in the FEIS, in addition to the professional experience of Seashore staff implementing various species management measures under the Interim Strategy and the Consent Decree.

As noted in the References section of the FEIS, the majority of the research that was relied upon was from peer-reviewed journals and official agency publications, such as the U.S. Fish and Wildlife Service species recovery plans. However, NPS did review and incorporate the results of several studies that were completed by university researchers as part of their graduate theses or doctoral dissertations, as many of these research projects involved species found at the Seashore and also occurred in similar coastal or barrier island ecosystems.

NPS believes the FEIS contains information of maximum quality, objectivity, utility, and integrity and is therefore in compliance with the Information Quality Act and the OMB, DOI, and NPS policies and guidelines that address the Act.

37. Comment: The definition of ORV corridor in the proposed rule does not sufficiently protect wildlife. The definition in the proposed rule has the effect of setting aside far more area for driving than it did in the FEIS, when it was clearly modified by the establishment of Species Management Areas.

Response: The NPS has revised the definition of ORV Corridor in the final rule to better describe the physical boundaries of the ORV corridor on the beach and to ensure that the definition is consistent with the intent of the language in the FEIS and ROD, thereby providing a sufficient level of wildlife protection. Instead of using Species Management Areas (SMAs), the NPS revised the Preferred Alternative (FEIS p. 79-80) and the resulting Selected Action in the ROD to provide more intensive monitoring and response to changes in bird activity rather than less intensive monitoring with larger and longer-lasting closures. The purpose of this change was to simplify the plan and to lessen the amount of time that designated ORV routes would be affected by resource closures, while still providing sufficient protection for wildlife, especially during critical life stages.

38. Comment: There should be corridors to provide access through and around areas of resources closures. The Selected Action, Alternative F, will result in less shoreline available for recreation, resulting in crowding and user conflict.

Response: During public comment on the DEIS, some commenters recommended providing a corridor through all species resource closures and buffers. A buffer or resource closure is an area surrounding a sensitive resource, such as bird nests or chicks, which is closed to visitor access during critical life cycle stages to reduce human disturbance and the risk of mortality due to pedestrians and ORVs. Any passages, corridors, or pass-throughs that cut directly across or through a resource closure would essentially undermine the biological function of the closure and could render it compromised, perhaps even useless, to the species it is meant to protect, particularly if all buffers were to include ORV corridors. Therefore, including an ORV corridor through resource closures was not included in the range of alternatives, as it would violate the mandate to conserve wildlife and other park resources under the Organic Act, the Seashore's enabling legislation, the E.O.s on ORV management, and 36 CFR 4.10.

39. Comment: Vehicle traffic should be routed around nesting sites using established roads in order to avoid impacts to wildlife.

Response: The FEIS calls for the use of species-specific buffer distances to minimize human disturbance and protect nesting areas. In many cases, the buffer, once established, will preclude access along the beach adjacent to a nest site, particularly if the beach is narrow. However, in some cases, such as on a wide beach or inlet spit, there may be sufficient distance between the nesting area and the shoreline to allow continued access when the prescribed buffers are implemented. When shoreline access is temporarily closed to protect a particular nest site, ORV traffic will be able to continue to use open routes, which connect to established roads, in order to access other locations that are open to ORV use.

40. Comment: The required training and ORV permits should be available at multiple locations and online, not just “in person” as indicated in paragraph 7.58(c)(2)(v). Requiring the education to be obtained “in person” could cause undue delays for visitors, especially when there is a high influx of visitors. Once an individual has completed the education program, they should not have to complete the education program again in the following year(s) or weeks, if renewal of a weekly permit is desired.

Response: The NPS has modified paragraph 7.58(c)(2)(v) of the rule by removing the “in person” language to provide the Superintendent with greater flexibility for administering the ORV permit issuance procedures. The objective of the education program is to ensure ORV operators know the rules and to improve compliance with ORV and resource protection requirements.

NPS will initially require that all permit applicants take the education program in person in order to ensure completion of the program, and applicants will be required to take the education program annually for annual permits, or once per year if an applicant obtains one or more 7-day permits in a year, assuming the applicant has committed no violations since last taking the education program. Through the periodic review process, the NPS will evaluate the effectiveness of the education program in achieving its objectives and could at some point, if appropriate, consider changes in the delivery method or frequency of the education requirement.

41. Comment: The Seashore should require education for all visitors, not just ORV users.

Response: The education requirement in the rule applies specifically to persons applying for an ORV permit, as NPS believes that the education program will improve compliance with the ORV regulations. As indicated in Table 8 of the FEIS, NPS will also develop a new voluntary ( i.e. not mandatory) resource education program targeted toward pedestrian beach users.

42. Comment: NPS should consider alternatives to a permit fee, including alternative ways for the park to generate revenue, such as collecting tolls at the Seashore. If ORV users are going to be charged a user fee, then all visitors should have to pay a fee.

Response: While preparing the plan/EIS, NPS considered a variety of alternative elements related to ORV permits and fees and then considered public comments on the issue before determining the Selected Action in the ROD. The idea of an entrance fee for the Seashore was discussed thoroughly during the negotiated rulemaking process and was dismissed primarily due to administrative and financial obstacles.

Establishing an entrance fee would require NPS to install and staff entrance gates in the Seashore to collect entrance fees. NPS would then need to accommodate thousands of local residents that need to travel through the Seashore to gain access to their property. The logistics of collecting entrance fees from all visitors would result in delays at entrances and would restrict travel along NC-12. In addition, the Seashore would only be able to retain a portion of the entrance fees collected and generally those funds are not available to support key functions associated with an ORV management program, such as law enforcement, maintenance of routes or parking lots, or resource management. The fee paid for a Seashore ORV permit will be collected and retained under the NPS special park uses cost recovery authority to support the various ORV management program functions.

43. Comment: Outer Banks residents should not be required to obtain an ORV permit, or at least should not have to pay a fee.

Response: As a unit of the National Park System, the Seashore is open on an equal basis to all members of the public, regardless of where they live. Therefore, the cost of ORV permits would be the same for all ORV users and would not vary based on their place of residence. Additional information on how the permit system would be administered and what fees would be used for can be found in the FEIS (p. C-70).

44. Comment: ORV permits should be issued to individuals rather than vehicles.

Response: The option of issuing a permit to the person that would be usable in any vehicle was considered during the development of the plan/EIS, but eventually eliminated. Tracking and verifying that people have ORV permits when the permits are movable between multiple vehicles would require substantially more effort by NPS law enforcement staff. Therefore, to provide the most efficient method for enforcing the permit system, NPS has revised the wording in paragraph (c)(2) of the rule to make it clear that the permit is issued to the individual for a specific vehicle and the “proof of permit,” such as a windshield sticker or a hang-tag issued by NPS, must be affixed to that vehicle for use off-road.

45. Comment: The ORV permit should not be based on the calendar year, but instead permits should be valid one year from the issue date. Other commenters suggested that the ORV permit be issued for two weeks, similar to the North Carolina recreational saltwater fishing license.

Response: While developing the plan/EIS, NPS considered a variety of options for year-long permits, which included an option for permits that would be valid for one year from the issue date, as well as various options for short-term permits. Based on simplicity, operational efficiency, and visitor convenience, the decision was made to provide visitors with two permit options: annual permits, valid for the calendar year; and 7-day permits, valid from date of purchase.

46. Comment: The proposed price range for the ORV permit is too high and will discourage use.

Response: The price for the ORV permit will be based on a cost-recovery system and is not designed to be prohibitive. As a cost recovery program administered under NPS Director's Order 53, the actual price of the ORV permit will be determined by the cost to NPS to implement the ORV management program divided by the estimated number of permits to be sold.

Based on prices at Cape Cod and Assateague Island National Seashores for similar types of permits, it is reasonable to expect the price of an annual ORV permit at Cape Hatteras to be $90-$150 and the price of a weekly permit to be approximately 33%-50% of the annual price (up to 50% if the annual price is lower in the price range; as low as 33% if the annual price is higher in the price range).

47. Comment: After paying for a permit, people may not be able to access their preferred area of the Seashore due to resource closures or carrying capacity restrictions.

Response: Obtaining an ORV permit allows a visitor to operate the permitted vehicle on designated ORV routes, but does not guarantee access to all routes all the time. Certain areas of the Seashore may also be closed to ORV access for resource protection during breeding and nesting season for protected species. During peak use periods, such as summer weekends and holidays, there could be occasions where certain popular areas at the Seashore reach their established carrying capacity limit, precluding additional ORV use until a number of vehicles leave the particular area.

While it is true that some popular ORV areas will be inaccessible at certain times during the year, past experience indicates that substantial sections of the beach designated as ORV routes would remain open for ORV use when other sections are temporarily closed.

48. Comment: There should be lower fees for less polluting vehicles.

Response: As discussed previously, the price of the ORV permit fee is determined by how much it costs NPS to implement the ORV management plan. Although low emission vehicles are less polluting, they still require the same effort and level of management as standard vehicles. Therefore, offering a reduced fee for low emission vehicles would not meet the NPS goal of recovering the costs of administering the ORV management program.

49. Comment: The legality and cost of the NPS inspection and equipment requirements are questionable.

Response: As part of the special regulation, NPS has the authority to develop vehicle and equipment requirements associated with issuance of an ORV permit. Much like state vehicle inspection requirements, Seashore law enforcement personnel may inspect ORVs to ensure compliance with the vehicle requirements contained in the rule. NPS will not randomly search permitted ORVs for required equipment. However, ORV operators must be able to demonstrate compliance with vehicle and equipment requirements upon request.

NPS developed these equipment requirements, which are similar to ORV equipment requirements at other seashore parks, in order to provide for visitor safety and reduce incidences of vehicle strandings. The equipment requirements contained in the rule are minimal and are generally items that most drivers already have in their vehicles. Accordingly, the cost of these items would be negligible.

50. Comment: Low speed vehicles, golf carts, or electric vehicles should be allowed.

Response: Under the proposed rule, only vehicles registered, licensed, and insured for highway use and that comply with inspection regulations within the state, country, or province where the vehicle is registered are allowed to operate on the Seashore. While low speed vehicles or neighborhood electric vehicles may be authorized for local use in certain areas, they generally are not registered, licensed, or insured for highway use, and therefore will not be permitted to be used on the Seashore.

51. Comment: NPS should clarify what it means in paragraph (3)(v) by requiring a “jack stand” be carried. Jack stands are typically used in an automotive repair shop.

Response: NPS concurs with this comment and has revised paragraph (c)(3)(v) of the rule to use the phrase “jack support board,” rather than “jack stand.” The purpose of the board is to place it under the jack so the jack does not sink into the soft sand if the vehicle operator is attempting to raise the vehicle to change a tire on the beach.

52. Comment: Paragraph (6) of the rule should be clarified to indicate that trailers with sleeping, cooking, and bathroom facilities are excluded.

Response: NPS generally concurs with this suggestion; however, NPS believes that trailers with only cooking facilities, such as a grill, are appropriate for beach use. Since camping on Seashore beaches is prohibited, the intent is to preclude the use of trailers that could contribute to violations of the camping prohibition. NPS has revised paragraph (c)(6) of the rule to state as follows: Towing a travel trailer ( i.e. a trailer with sleeping and/or bathroom facilities) off-road is prohibited.

53. Comment: Additional modes of alternative transportation should be included in the rule.

Response: Alternative transportation is outside the scope of the rule; however, as described in the FEIS under Alternative F, transportation strategies such as shuttles and buses could be considered (p. 80). According to the ROD, NPS would consider applications for commercial use authorizations to offer beach and water shuttle services and would apply for funding to conduct an alternative transportation study to evaluate the feasibility of alternative forms of transportation to popular sites.

54. Comment: In paragraph (7)(iii), special-use permits for mobility impaired individuals should be valid for all vehicle-free areas, not just in vehicle-free areas in front of villages.

Response: Vehicle-free areas were designed to provide areas for a “vehicle-free” experience for park visitors and to provide for resource protection for wildlife. There are many opportunities for mobility impaired visitors to use an ORV for beach access on the designated ORV routes outside of the vehicle-free areas. For mobility impaired visitors who specifically wish to join others that have gathered on foot on a village beach, the special-use permit option is also provided.

55. Comment: In paragraph (7)(iii), the requirement that the vehicle must return to the designated ORV route or Seashore road immediately after the transport raises significant safety concerns and is unreasonable. What if the person needs to leave the beach quickly due to weather or health issues?

Response: NPS concurs that the vehicle removal requirement in paragraph (c)(7)(iii) of the proposed rule may create safety concerns or be unreasonable under certain circumstances. NPS revised the wording in the rule to eliminate the vehicle removal requirement and to state that special-use permits are subject to the resource, safety, and other closures implemented under § 7.58(c)(10), and may only be used in a manner consistent with the terms and conditions of the permit.

56. Comment: Vehicular access should only be allowed for mobility impaired visitors.

Response: ORV use, if effectively managed, provides convenient access for many appropriate visitor activities at some popular beach sites including, for example, activities that use vehicles to transport substantial amounts of gear for the activity. Allowing only mobility-impaired visitors to operate vehicles on ORV routes would essentially preclude vehicular access for the majority of ORV users at the Seashore.

As noted above, this rule implements the ROD which allows for continued ORV use. Allowing ORV use only by mobility-impaired visitors would not have met the purpose, need, and objectives of the plan/EIS. This approach would also have been inconsistent with the Seashore's 1984 General Management Plan which states that “selected beaches will continue to be open for ORV recreational driving and in conjunction with surf fishing in accordance with the existing use restrictions.”

57. Comment: The proposed rule makes no mention of the Americans with Disabilities Act (ADA). Special-use permits should be issued to anyone who possesses a legally registered handicapped sticker from their state.

Response: The Rehabilitation Act, 29 U.S.C. 791 et seq., applies to Federal agencies in lieu of the ADA, and NPS is required to provide reasonable access to programs and services at the Seashore. “Reasonable” does not necessarily mean “total” and must be viewed in the light of the entire program or activity, including its purpose ( i.e., providing the visitor with a variety of experiences).

In developing the plan/EIS and rule, NPS recognized that visitors to the Seashore have different needs, and therefore provided that:

• ORVs are allowed on designated routes for those visitors who feel they may require a vehicle to be readily available due to a medical condition or disability or may need to have a family member with them at all times,

• Vehicular transport of mobility-impaired individuals is allowed via the shortest, most direct distance from the nearest designated ORV route or Seashore road to a predetermined location in a beach area in front of a village that is not otherwise open to ORV use.

Anyone who has a license plate or placard issued by a State Division of Motor Vehicles to a mobility-impaired individual is eligible for the special-use permit; however, the special-use permit is not intended to provide blanket vehicular access to all vehicle-free areas. Because the special-use permit is intended only to allow vehicular transport of mobility-impaired individuals via the shortest, most direct distances from the nearest designated ORV route or Seashore road to a predetermined location in a designated vehicle-free area in front of a village, NPS will issue the special-use permit upon request on a case-by-case basis. The specific terms and conditions of each special-use permit, such as the location to be accessed or the duration of the permit, will be determined based on the individual need. These opportunities are consistent with the applicable requirements and NPS policies.

58. Comment: Implementation and enforcement of special-use permits will create an undue workload burden on the Superintendent and NPS personnel.

Response: The operational impacts of ORV management and the associated costs for adequate staffing to implement the ORV management plan and rule, including the special-use permit provision, were carefully considered in the FEIS. The specific circumstances described in paragraph (c)(7) for issuance of a special-use permit to authorize temporary off-road driving in areas not designated as ORV routes are limited in scope, number, and frequency of occurrence. The expected special-use permit workload will not add substantially or uniquely to the general ORV management workload that was considered and addressed in the FEIS.

59. Comment: Non-emergency use by nonessential vehicles should be prohibited within a resource closure and special-use permits should state that the holder must adhere to all closures.

Response: NPS concurs with this comment. The wording of paragraph (c)(7) of the rule has been revised to state that the special-use permits are subject to the resource, safety, and other closures implemented under § 7.58(c)(10), and may only be used in a manner consistent with the terms and conditions of the permit.

60. Comment: NPS should increase its law enforcement presence and focus on enforcing the existing rules, which are sufficient, rather than establishing additional rules.

Response: Without a rule designating ORV routes, NPS is out of compliance with its own regulations and the E.O.s on ORV use. Therefore, this rule is needed to allow continued ORV use at the Seashore. The operational impacts of ORV management and the associated costs for adequate staffing to enforce regulations related to ORV use were considered and addressed in FEIS.

61. Comment: NPS should create a 1,000-meter ORV exclusion zone on beaches adjacent to all NPS campgrounds to improve the experience for people staying in the campgrounds and to reduce visitor conflicts and improvement of amenities.

Response: The beach in front of the Ocracoke campground is designated as vehicle-free during periods of high visitor use (April 1 to October 31). At Cape Point, Oregon Inlet, and Frisco Campgrounds, adjacent areas are open to ORV use year-round to maintain an ORV route, and the Seashore knows of no major issues raised related to safety or conflicts at the campgrounds that would warrant additional restrictions. However, the Superintendent has the authority under paragraph (c)(10) of this rule to temporarily restrict access to ORV routes or areas in accordance with public health and safety criteria.

62. Comment: The NPS has mischaracterized beach driving as a “new” activity in order to justify new infrastructure.

Response: ORV use at the Seashore is not new. NPS briefly summarized the history of ORV use at the Seashore in the preamble to the proposed rule and more extensively in pp. 17-27 of the FEIS. What is new is that the rulemaking process will result in the formal designation of ORV routes in order to comply with the E.O.s on ORV use and with NPS regulation 36 CFR 4.10(b). As described in the FEIS and ROD, new infrastructure will facilitate public use of designated ORV routes and the vehicle-free areas that are not designated for ORV use.

63. Comment: An area that is not endangering the wildlife should be set aside for recreational beach driving. Please act responsibly and build a nearby track for racing around in a dune buggy or off-road vehicle.

Response: The E.O.s require that ORV activities on public lands be limited to designated routes or areas and that these designations be based on the protection of resources, the promotion of visitor safety, and the minimization of user conflicts. Designating an area for recreational driving or racing would not meet these requirements, as these types of vehicular uses would not promote visitor safety, minimize conflicts, or adequately protect resources.

This rule implements the ROD, which did not provide for such use. Establishing this type of use would have been inconsistent with the purpose of the plan/EIS, which was to “develop regulations and procedures that carefully manage ORV use/access in the Seashore to protect and preserve natural and cultural resources and natural processes, to provide a variety of visitor use experiences while minimizing conflicts among various users, and to promote the safety of all visitors.”

64. Comment: Where ORV use is allowed could be based on seasonal indicators such as the summer tourist season or by seasonal nesting patterns for species at the Seashore.

Response: While preparing the plan/EIS, NPS considered a variety of seasonal factors, including shorebird and turtle nesting seasons, and park visitation and rental unit occupancy trends, before determining the dates used for seasonal restrictions in the Selected Action and ROD. The proposed rule was based on and is consistent with the ROD.

65. Comment: Seasonal ORV closures of villages should be based on conditions, not arbitrary dates. Dates should not be permanently established in the proposed rule, but should be determined annually by the Superintendent through consultation with Dare County, Hyde County, and North Carolina Department of Transportation officials.

Response: The seasonal dates when ORV use is allowed in front of villages and Ocracoke Campground are not arbitrary. In the ROD, NPS determined these areas would be open to ORVs from November 1 to March 31, when visitation and rental occupancy is lowest. To provide for increased visitor safety and additional opportunities for a vehicle-free experience, these areas will be closed to ORV use from April 1 to October 31 when visitation and rental occupancy is highest.

66. Comment: The language describing user conflicts in the proposed rule is inaccurate. NPS would have everyone believe that the people who use the Seashore are in conflict with each other, which is not true.

Response: The existence of visitor conflicts has been documented in many public comments received on the Interim Strategy and on the DEIS. The Seashore also receives letters from visitors complaining about the adverse effects of ORVs on their experience at the Seashore. Some members of the negotiated rulemaking committee represented members of the public that consider the presence of vehicles driving on the beach as a conflict with their experience of the Seashore.

The Seashore does not compile data on numbers of these complaints or incidents of visitor conflict, nor is a quantitative analysis required to manage or minimize it under the E.O.s. As required, the Seashore is designating routes to “minimize visitor conflict.”

67. Comment: ORVs should be limited as to the amount of noise each vehicle can make.

Response: Vehicles used off-road must be registered, licensed, and insured for highway use and must comply with inspection regulations within the state, country, or province where the vehicle is registered.

Most jurisdictions require that vehicles authorized for highway use have functioning exhaust and muffler systems and prohibit modifications to those systems that could result in excessive noise. In addition, 36 CFR 2.12, Audio Disturbances, prohibits the operation of motorized vehicles within NPS units in excess of 60 dBA at a distance of 50 feet from the source, or if below that noise level, noise which is unreasonable. The rule also establishes reduced speed limits, which will reduce vehicular noise.

NPS believes that this combination of restrictions will adequately protect the soundscape in the Seashore.

68. Comment: There should be substantial fines for violation of ORV rules and requirements.

Response: Most of the violations observed at the Seashore are considered petty offenses (Class B Misdemeanors) in the Federal Court System, which carry a maximum fine of $5,000.00 and/or six months in prison. The size of fines is also governed by a collateral forfeiture schedule, as approved by the Chief Judge of the Eastern District of North Carolina. The last update to the collateral forfeiture schedule was approved by the court in 2004. NPS will submit an updated collateral forfeiture schedule in the next year or two and may request higher fines for ORV related offenses. In addition to the possibility of fines for the violator, an ORV permit may be revoked for violation of applicable park regulations or terms and conditions of the permit, which includes violation of resource protection closures.

69. Comment: Night driving should be prohibited during sea turtle and bird nesting season.

Response: This rule prohibits night driving from May 1 through September 14, which coincides with sea turtle nesting season. The rule also authorizes the Superintendent to permit night driving from September 15 through November 15, but only in areas where no sea turtle nests remain. Pre-nesting and seasonal resource closures described in the FEIS prohibit any ORV use in these areas during the nesting period for sensitive bird species. NPS believes that these measures provide ample nighttime protection for birds, sea turtles, and their nests.

70. Comment: Night driving restrictions are not needed, are not based on science, and should not be included in the rule. There has only been one documented case in the history of the Seashore of a sea turtle being hit by an ORV, and that occurred in an area closed to the public while the consent decree night driving restriction was in effect.

Response: The sea turtle management procedures at the Seashore are based on the latest scientific research and are consistent with the latest U.S. Fish and Wildlife Service Recovery Plan for the Northwest Atlantic Population of the Loggerhead Sea Turtle (2008) and North Carolina Wildlife Resources Commission guidelines, which were both developed by scientific experts in the field of loggerhead sea turtle biology and conservation. For example, the loggerhead sea turtle recovery plan recommends that nighttime driving on beaches during the loggerhead nesting season be prohibited because vehicles on the beach have the greatest potential to come into contact with nesting females and emerging hatchlings at night.

Driving on the beach at night has been shown to impact nesting sea turtles and hatchlings both directly and indirectly. Because visibility is reduced at night, there is also the potential for nesting, live stranded, or hatchling turtles to be hit by ORVs operating at night. In addition, because NPS does not have the resources to monitor the entire beach 24 hours per day, the number of recorded incidents resulting from human activities, especially at night, likely underestimates the actual number of incidents that occur.

Even in areas that people do not normally access due to the distance from beach access points, the Seashore has documented vehicle lights and people with lights and cameras causing false crawls—false crawls that would likely not have occurred if ORVs had not brought people to those locations. Park staff have also documented turtles crawling toward vehicle lights after nesting, false crawls adjacent to fire pits, hatchlings disoriented by fires, hatchlings caught in tire ruts, and vehicles running over turtle nests before morning turtle patrols—some with recorded damage to eggs.

Though it is the only known recorded incident at the Seashore where an adult nesting turtle was struck and killed by an ORV, the recent death of an adult nesting turtle that likely occurred during the early morning hours of June 24, 2010 indicates that the potential does exist for vehicles driving at night to strike and kill nesting turtles.

71. Comment: The regulation should allow portions of designated ORV routes to remain open to night driving rather than closing the entire route containing a turtle nest.

Response: NPS concurs with this comment and has revised the rule language to provide the Superintendent with the authority to open “portions of” designated ORV routes in sea turtle nesting habitat to night driving if no turtle nests remain within those portions.

72. Comment: NPS should close the Seashore to night driving from 10 p.m.-6 a.m. or from one hour after sunset to one hour before sunrise.

Response: As described in the FEIS, NPS studied several different scenarios for establishing the hours and dates for night driving at the Seashore. Restricting night driving between the hours of 9 p.m. and 7 a.m. provides an easily understood, enforceable restriction that provides a balance between conservation and public access by encompassing the majority of the nesting and hatching periods at night while generally allowing turtle patrol staff time to find and protect nests before ORVs are on the beach each day.

73. Comment: The rule should allow vehicle operators to avoid turtles rather than closing routes to night driving.

Response: As noted above, night driving has been shown to impact sea turtles, and turtle management experts who developed the loggerhead sea turtle recovery plan recommend that night driving be prohibited during the turtle nesting season. Allowing vehicles in close proximity to sea turtles, especially at night, greatly increases the potential for direct and indirect disturbance to nesting turtles and hatchlings. Therefore, seasonally closing ORV routes (or portions of ORV routes) to night driving is a reasonable method of protecting sea turtles while continuing to provide ORV users with some level of night driving opportunities outside of seasonal restrictions.

74. Comment: NPS should require applicants for night driving permits to complete an educational program.

Response: The education program that must be taken in order to obtain the standard ORV permit will address night driving restrictions and reasons for those restrictions. The rule does not require a separate or special permit for night driving.

75. Comment: The night driving restriction will curtail other early evening and nighttime activities at the Seashore, such as night sky viewing and beach fires. Lack of ORV access at night will create safety issues by requiring fisherman to walk in the dark to access prime historic fishing grounds.

Response: Seasonal night driving restrictions may affect the ability of visitors to have beach fires in more remote areas of the Seashore after 9 p.m. However, beach fires will still be permitted throughout the Seashore outside of turtle nesting season and in front of villages and other selected beaches during the nesting season. Night driving restrictions will actually improve the ability of visitors to enjoy night sky viewing by reducing the amount of ambient light on the beaches. Although night driving restrictions will preclude fishermen from driving to or from fishing grounds after 9 p.m., nothing in the rule will prohibit fishermen (or other visitors) from carrying a flashlight along the beach outside of resource closures.

76. Comment: Camping in self-contained vehicles, vehicles engaged in fishing, and vehicles remaining stationary should be allowed on the beach at night.

Response: Off-season, self-contained vehicle camping in park campgrounds was analyzed in the FEIS in Alternative E. It was not selected in the ROD or included in the rule due to the staffing and operating costs, and the permitting, law enforcement patrol, and maintenance workloads associated with keeping campgrounds open in the off-season for a limited number of campers.

NPS believes that local commercial campgrounds provide appropriate opportunities for off-season vehicle camping. Allowing overnight parking on the beach when night driving is restricted would create patrol and enforcement problems, and would rely on the unrealistic expectation that visitors parked in such locations would strictly comply with the night driving restrictions. NPS does not have the resources to patrol the entire Seashore at night to enforce compliance, and allowing parked vehicles on the beach at night would potentially result in additional compliance problems that would cause adverse impacts to park resources.

77. Comment: The Seashore should be closed to commercial fishing. If not closed to commercial fishing, there should be specific restrictions on commercial fishing activity and permits.

Response: The Seashore's enabling legislation provides that the legal residents of the villages have the right to earn a livelihood by fishing within the boundaries of the Seashore. Therefore, NPS allows commercial fishing. However, the activity is managed and permitted in accordance with the eligibility requirements in 36 CFR 7.58(b). Under the ORV rule, commercial fishermen will not be required to obtain a separate ORV permit, but their use of vehicles on Seashore beaches will be regulated through their commercial fishing permit issued by the Seashore.

78. Comment: Commercial fishing should be allowed only where there is neither a resource closure nor a lifeguarded beach.

Response: Commercial fishing vehicles have been prohibited from entering either resource closures or lifeguarded beaches for a number of years under the Superintendent's Compendium, and NPS is continuing this prohibition in this rule. To make it clear that the restriction applies to either situation, NPS has revised the wording in paragraph (c)(8)(i) of the rule.

79. Comment: The list of “open ramps” in paragraph (c)(9) is misleading because it includes proposed ramps that are not yet funded. Since there are ramps, parking areas, and dune walkovers identified as mitigation that are not funded, they should not be included in the rule and the rule should not be implemented until the ramps are constructed. The funds needed to construct the proposed ramps and other infrastructure need to be identified.

Response: Implementation of the FEIS, ROD and this rule will require funding for construction of supporting infrastructure, such as new access ramps and parking areas. NPS anticipates that funding for this construction will come from appropriated NPS program funds such as “Line Item Construction” or “Repair and Rehabilitation,” or from the park's recreation fees, or from grants. The only designated year-round ORV route at the Seashore that will not have an established ORV access point until after the new ramps are constructed is the area between ramp 59.5 and ramp 63. Therefore, NPS has amended the language in the rule to allow existing ramp 59 to remain open to ORV use until ramp 59.5 can be funded and constructed.

80. Comment: Some areas that have been historically open to ORVs have been excluded from the designated routes listed in the tables in paragraph (c)(9). If NPS moves forward with its plan to close these areas to ORV use, the rule should be revised to provide for an adaptive management process under which NPS could reopen these closures based on visitor use patterns.

Response: The designated ORV routes in paragraph (c)(9) of the rule are taken from Alternative F in the FEIS, which became the Selected Action in the ROD. An NPS regulation, 36 CFR 4.10, requires NPS to designate routes through the promulgation of this special regulation.

NPS received and considered numerous comments on the proposed ORV routes during the review of the DEIS and addressed these public comments in Appendix C of the FEIS. While the FEIS contains adaptive management provisions for protected species management, the designation of ORV routes in a regulation does not lend itself to the principles of adaptive management, which is designed to make iterative adjustments to management techniques as new scientific information becomes available. If, at some point in the future, NPS needs to revise the designated ORV routes, additional NEPA compliance will be required, followed by a new proposed and final rule.

81. Comment: Paragraph (c)(9) of the proposed rule (ORV Routes) should be amended to state explicitly that these routes will be subject to mandatory resource, safety, seasonal, and other closures. These clarifications are necessary to make it clear that even if a route is “open,” it is still subject to certain closures. By not putting in these clarifications, NPS would violate E.O. 11644.

Response: The wording of paragraph (c)(9) has been revised in the rule to make it clear that the routes and ramps listed are “designated” for ORV use, not necessarily “open.” Paragraph (c)(10) indicates that routes or areas designated for off-road use are subject to closure or restriction by the Superintendent for a variety of reasons, including natural and cultural resource protection.

82. Comment: Section 7.58(c)(10) should be revised to provide the Superintendent with the discretion to authorize enhanced access when he or she determines that such enhanced access is appropriate based upon consideration of the relevant factors.

Response: Paragraph (c)(10) applies specifically to the Superintendent's authority to establish temporary closures of ORV routes as needed to provide for resource protection, public health and safety, and other conditions described in that paragraph. Examples could include pre-nesting closures, carrying capacity closures, and implementation of resource protection buffers described in the FEIS. The Superintendent does not have the discretion to allow vehicular access to areas that are not authorized or designated as ORV routes in the special regulation, except for the specific situations addressed in paragraph (c)(7), related to temporary special-use permits for off-road driving.

83. Comment: There is no basis for the NPS to establish parking requirements and reduced speed limits in the rule.

Response: As described in the FEIS, NPS decided to implement the “one deep” beach parking restriction as a safety measure to ensure that two-way traffic will not be impeded during times of high ORV use. Although parking multiple rows deep may seem desirable to some visitors, law enforcement staff have documented that it has resulted in parking and traffic congestion, especially on narrow beaches. This congestion blocks vehicle travel lanes, impedes safe traffic flow, fosters disorderly behavior, and results in a potentially dangerous situation in the event of an emergency. Reduced speed limits were implemented to increase pedestrian safety in areas where pedestrians and ORVs are in close proximity to one another.

84. Comment: The use of the term “may” in paragraph (c)(10), Superintendent's Closures, renders the section permissive rather than obligatory. As written, the proposed rule seems to allow the Superintendent to choose not to impose any closures at all, even in the presence of protected species nests or chicks that would warrant imposition of buffers under the FEIS and ROD. The wording should be revised to state “the Superintendent shall limit, restrict, or terminate access to routes or areas designated for off-road use” based on the considerations listed.

Response: The intent of the special regulation is to implement the Selected Action as described in the FEIS and ROD, which includes implementation of the Species Management Strategies described in Table 10-1 in the FEIS. As also described in response #10, the strategies will be periodically reviewed to evaluate their effectiveness. The wording of paragraph (c)(10) has been revised to state that the Superintendent “will” temporarily limit, restrict, or terminate access to routes and areas designated for off-road use in accordance with the criteria listed; and wording has been added that states “the Superintendent will conduct periodic reviews of the criteria and the results of these closures to assess their effectiveness.”

85. Comment: The vehicle carrying capacity is objectionable and not necessary, as the capacity of the area regulates itself. Carrying capacity should be struck from the rule.

Response: NPS disagrees with the assertion that “the capacity of the area regulates itself.” Numerous documented law enforcement incidents have occurred over the years at popular locations during peak use periods, such as summer holiday weekends, involving crowded conditions, disorganized parking, and unsafe vehicle operation. The 260 vehicle per linear mile limit, based on a physical space requirement of 20 feet per vehicle, will allow enough space for vehicles to be parked side-by-side with their doors open without touching each other and with room for a person to pass between them safely. This, along with the other measures in the rule, will improve visitor experience and visitor safety during busy weekends.

86. Comment: The carrying capacity in the proposed rule should be much lower and allow no more than 130 ORVs per mile of Seashore. Language should be added to the rule to clarify that density limitations apply per mile of the beach, and not to the entire National Seashore.

Response: As described above, NPS developed carrying capacity restrictions to work with other measures in the rule to mitigate public safety and visitor experience impacts during peak ORV use periods at the Seashore. The established capacity limits are intended to apply to beach segments open to ORV use at any particular time and not as a method of establishing the total allowable numbers of vehicles in the entire Seashore at any one time. Paragraph (c)(13) of the rule has been revised to make it clear that the carrying capacity applies to that portion of an ORV route that is open for ORV use.

After taking the public comments into consideration and after additional review, NPS made the following changes in the final rule:

This final rule establishes a special regulation as provided in 36 CFR 4.10(b) to manage ORV use at the Seashore. The regulation implements portions of the Selected Action, as described in the ROD, by designating ORV routes at the Seashore, establishing requirements to obtain a permit, and imposing date and time and other restrictions related to operation of ORVs, including vehicle and equipment standards. In addition, the final rule corrects a drafting error at § 7.58(b)(1) to clarify that the definitions found there only apply to § 7.58 and not to the entirety of 36 CFR part 7.

The rule will also delete the definition of permittee at § 7.58(b)(1)(ii) as it is unnecessary and potentially confusing to the public, as the term could be applied to individuals holding different types of permits for different activities. This deletion consequently requires redesignation of the remaining provisions in paragraph (b).

The following explains some of the principal elements of the final rule in a question and answer format:

For the purposes of this rule, an off-road vehicle or ORV means a motor vehicle used off of park roads (off-road). Vehicles will need to comply with vehicle and equipment requirements in this rule; vehicles that do not comply are not authorized for ORV use at the Seashore.

Yes. To obtain an ORV permit, you must complete a short education program, acknowledge in writing that you understand and agree to abide by the rules governing ORV use at the Seashore, and pay the applicable permit fee. Both weekly (7-day, valid from the date of issuance) and annual (calendar year) ORV permits will be available.

No. There will be no limit to the number of permits that the Superintendent could issue. However, use restrictions may limit the number of vehicles on a particular route at one time.

Yes. You will need to get a permit for each vehicle that you want to use for driving on designated ORV routes. You must display the proof of permit, in a manner and location specified by the Superintendent, on each vehicle that you operate on designated ORV routes within the Seashore. (The proof of permit may be a color coded windshield sticker, hang tag for the rear-view mirror, or some other indicator provided by NPS.)

Once you obtain an ORV permit, you may operate a vehicle off road only on designated routes described in the tables located in § 7.58(c)(9). The tables also provide dates for seasonal restrictions on driving these designated routes. Maps of designated ORV routes will be available in the Office of the Superintendent and on the Seashore Web site.

No. In addition to the referenced seasonal restrictions, ORV routes are subject to temporary resource and safety closures. However, past experience indicates that substantial portions of the beach designated as ORV routes will remain open for ORV use even when other sections are temporarily closed.

Yes. To receive a permit to operate a vehicle on designated ORV routes, your vehicle must:

• Be registered, licensed, and insured for highway use and comply with inspection requirements for the state, country, or province where the vehicle is registered;

• Have no more than two axles and be equipped with tires that are listed or approved by the U.S. Department of Transportation as described at: http://www.safercar.gov/Vehicle+Shoppers/Tires/Tires+Rating/Passenger+Vehicles .

• Be equipped with a low-pressure tire gauge, shovel, jack, and jack support board.

Yes. Four-wheel-drive vehicles are recommended, but two-wheel-drive vehicles will be allowed if, in the judgment of the vehicle operator, the vehicle is capable of over-sand travel.

Yes. Towed boat and utility trailers with one or two axles will be allowed. Boat and utility trailers with more than two axles will be prohibited.

No. Travel trailers will be prohibited on designated ORV routes, as camping at the Seashore is prohibited except in designated campgrounds.

No. The operation of motorcycles will be prohibited on designated ORV routes. Motorcycles are generally not capable of travelling through the deep, soft sand or carrying the requisite equipment for self-extraction should they become stuck.

No. ATVs and UTVs may not be operated on park roads or designated off-road routes. These vehicles have historically not been allowed to operate within the Seashore. Authorizing their use would interfere with the more significant and traditional use of four-wheel drive pick-up trucks, sport utility vehicles, and other passenger vehicles for off-road access associated with fishing, picnicking, sun bathing, surfing, wading, and swimming.

The speed limit will be 15 miles per hour (unless otherwise posted), except for emergency vehicles responding to a call.

Yes. Vehicles must yield to pedestrians and move to the landward side of the ORV corridor when approaching or passing a pedestrian on the beach. When traveling within 100 feet of pedestrians, ORVs must slow to 5 mph.

Yes, but not at all times on all routes. ORVs will be allowed on designated ORV routes 24 hours a day from November 16 through April 30, subject to the terms and conditions established under an ORV permit. From May 1 through September 14, designated ORV routes in potential sea turtle nesting habitat (ocean intertidal zone, ocean backshore, and dunes) will be closed to ORVs from 9 p.m. until 7 a.m. From September 15 through November 15, designated ORV routes in potential sea turtle nesting habitat (ocean intertidal zone, ocean backshore, and dunes) will remain closed to ORVs from 9 p.m. until 7 a.m., however, the Superintendent may reopen portions of designated ORV routes at night if there are no turtle nests remaining. This is a minor change to the dates in the ROD. NPS has decided it will be easier for the public to understand and more convenient to administer if the night-driving dates coincided with some of the seasonal ORV route dates. Therefore, night driving may be allowed beginning on September 15 instead of September 16. Routes that are subject to these night-driving restrictions, as well as routes or portions of routes identified as having no turtle nests remaining, will be shown on maps available in the Office of the Superintendent and on the Seashore Web site.

No. During the restricted hours, all vehicles will be prohibited on designated ORV routes, including the beach.

No. It will be covered by the ORV permit required to drive on the designated ORV routes in the Seashore.

Yes, if you obtain a special-use permit for that purpose. The special-use permit will allow you to transport mobility-impaired individuals to a predetermined location in a beach area in front of a village that is not otherwise open to ORV use. You will be subject to the terms and conditions set forth in the permit. Additionally, you should keep in mind that with a standard ORV permit you will have access to many miles of beach open to ORVs year-round or seasonally. In those areas, vehicles may simply be parked in the ORV corridor.

Yes. Commercial use authorizations would, as appropriate, also authorize ORV use by commercial use authorization holders, but not their clients. ORV use by commercial fishermen who are actively engaged in a commercial fishing activity would be authorized under the terms of their commercial fishing special-use permit.

In addition, the Superintendent may issue a special-use permit for temporary ORV use to:

• Allow the North Carolina Department of Transportation to use Seashore beaches as a public way, when necessary, to bypass sections of NC Highway 12 that are impassable or closed for repairs;

• Allow participants in regularly scheduled fishing tournaments to drive in an area if such tournament use was allowed in that area for that tournament before January 1, 2009; or

• Allow vehicular transport of mobility impaired individuals via the shortest, most direct distance from the nearest designated ORV route or Seashore road to a predetermined location in a beach area in front of a village that is not otherwise open to ORV use.

Yes. In keeping with the current practice, commercial fishermen when actively engaged in their authorized commercial fishing activity may be allowed to operate an ORV in a vehicle-free area if the beach is neither subject to a resource closure nor a lifeguarded beach. Lifeguarded beaches will be seasonally closed to ORVs by the Superintendent. Commercial fishing activities and use of associated fishing gear conflict with the significant concentrated beach use and associated swimming in these areas.

Commercial fishermen who are actively engaged in authorized commercial fishing activity and are carrying and able to present a fish-house receipt from the previous 30 days will be allowed to enter the beach at 5 a.m. on days when night driving restrictions are in effect for the general public.

Section 3(4) of E.O. 11644 provides that ORV “[a]reas and trails shall be located in areas of the National Park system, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.” Since the E.O. clearly was not intended to prohibit all ORV use everywhere in these units, the term “adversely affect” does not have the same meaning as the somewhat similar terms “adverse impact” or “adverse effect” used in the National Environmental Policy Act of 1969 (NEPA). In analyses under NEPA, a procedural statute that provides for the study of environmental impacts, the term “adverse effect” includes minor or negligible effects. Section 3(4) of the E.O., by contrast, concerns substantive management decisions and must be read in the context of the authorities applicable to such decisions. The Seashore is an area of the National Park System. Therefore, NPS interprets the E.O. term “adversely affect” consistent with its NPS Management Policies 2006. Those policies require that the NPS only allow “appropriate use” of parks and avoid “unacceptable impacts.”

This rule is consistent with those requirements. It will not impede the attainment of the Seashore's desired future conditions for natural and cultural resources as identified in the FEIS. NPS has determined that this rule will not unreasonably interfere with the atmosphere of peace and tranquility or the natural soundscape maintained in natural locations within the Seashore. Therefore, within the context of the resources and values of the Seashore, ORV use on the ORV routes designated by this rule (which are also subject to resource closures and other species management measures that will be implemented under the Selected Action in the ROD) will not cause an unacceptable impact to the natural, aesthetic, or scenic values of the Seashore.

Section 8(a) of the E.O. requires agency heads to monitor the effects of ORV use on lands under their jurisdictions. On the basis of the information gathered, agency heads shall from time to time amend or rescind designations of areas or other actions as necessary to further the policy of the E.O. The Selected Action for the FEIS, as described in the ROD, identifies monitoring and resource protection procedures, periodic review, and desired future conditions to provide for the ongoing and future evaluation of impacts of ORV use on protected resources. The park Superintendent has the existing authority under both this final rule and 36 CFR 1.5 to close portions of the Seashore as needed to protect park resources.

This document is a significant rule, and the Office of Management and Budget (OMB) has reviewed the rule in accordance with E.O. 12866 and 13563. The assessments required by E.O. 12866 and the details of potential beneficial and adverse economic effects of the final rule can be found in the report entitled “Benefit-Cost Analysis of Final ORV Use Regulations in Cape Hatteras National Seashore,” which is available online at http://www.parkplanning.nps.gov/caha .

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) The rule does raise novel legal or policy issues since ORV use at the Seashore has been the subject of litigation in the past; a settlement agreement between the parties was reached in May 2008 and ORV use at the Seashore is currently managed under a court order/consent decree until the final rule is promulgated.

According to the RFA and subsequent court decisions, NPS must assess the impacts on directly regulated entities, but is not required to analyze in a regulatory flexibility analysis the indirect effects on small entities resulting from rules (see Small Business Administration [2003] for a discussion of indirect versus direct impacts). No entities, small or large, are directly regulated by the final rule. Accordingly, NPS certifies that the final rule will not have a significant impact on a substantial number of small entities, as defined by the RFA and interpreted by the courts. This certification is based on information contained in the report entitled “Benefit-Cost Analysis of Final ORV Use Regulations in Cape Hatteras National Seashore,” available for review online at http://www.parkplanning.nps.gov/caha . As stated in that report, no entities, small or large, are directly regulated by the final rule, which only regulates visitors' use of ORVs.

As part of the socio-economic impact analysis for the plan/EIS, and based on suggestions from negotiated rulemaking advisory committee members, NPS conducted a small business survey, a visitor intercept survey, and a vehicle count study to supplement the existing sources of socio-economic data that were available in the public domain. We carefully considered this information in analyzing the rule's costs, benefits, and impact.

While close to 100 percent of the rule's economic impacts will fall on small businesses, some popular areas, such as Cape Point, South Point, and Bodie Island spit, would have designated year-round or seasonal ORV routes. The presence of more vehicle-free areas for pedestrians, combined with increased parking for pedestrian access, could increase overall visitation and thereby help businesses to recoup some of the revenues lost as a result of ORV restrictions.

The Selected Action described in the ROD, which is the basis for the final rule, includes a number of measures designed to mitigate the effect on the number of visitors, as well as the potential for indirect economic effects on village businesses that profit from patronage by Seashore visitors who use ORVs. These include: new pedestrian and ORV beach access points, parking areas, pedestrian trails, routes between dunes, and ORV ramps to enhance ORV and pedestrian access; a designated year-round ORV route at Cape Point and South Point, subject to resource closures when breeding activity occurs; and pedestrian shoreline access along ocean and inlet shorelines adjacent to shorebird pre-nesting areas until breeding activity is observed. In addition, NPS will seek funding for an alternative transportation study and consider applications for businesses to offer beach and water shuttle services. These extra efforts to increase overall access and visitor use under the Selected Action, which were developed with extensive public involvement, should increase the probability that the economic impacts are on the low rather than high end of the range.

This rule is not a major rule under the SBREFA, 5 U.S.C. 804(2). This rule:

a. Does not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This determination is based on information contained in the report titled “Benefit-Cost Analysis of Final ORV Use Regulations in Cape Hatteras National Seashore,” available online at http://www.parkplanning.nps.gov/caha . This action will result in increased costs for those visitors desiring to operate ORVs on the beach, due to the requirement for an ORV permit. However, the price of the permit will be based on a cost recovery system and will not result in a major increase in costs to visitors. Businesses operating in the Seashore under a commercial use authorization and commercial fishermen operating under a commercial fishing special-use permit will not need an ORV permit.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. The designated ORV routes are located entirely within the Seashore, and will not result in direct expenditures by State, local, or tribal governments. This rule addresses public use of NPS lands, and imposes no requirements on other agencies or governments. Therefore, a statement containing the information required by the UMRA (2 U.S.C. 1531 et seq. ) is not required.

Under the criteria in E.O. 12630, this rule does not have significant takings implications. No taking of real or personal property will occur as a result of this rule. Access to private property located within or adjacent to the Seashore will not be affected by this rule. This rule does not regulate uses of private property. A takings implication assessment is not required.

Under the criteria in E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This rule only affects use of NPS-administered lands and imposes no requirements on other agencies or governments. A Federalism summary impact statement is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Under the criteria in E.O. 13175, we have evaluated this rule and determined that it will have no potential effect on federally recognized Indian tribes.

On August 27, 2010, the NPS sent a letter to the Tuscarora Nation requesting information on any historic properties of religious or cultural significance to the tribe that would be affected by the FEIS. The Tuscarora Nation has not informed the Seashore of any such properties.

This rule does not contain any new collection of information that requires approval by OMB under the PRA of 1995 (44 U.S.C. 3501 et seq. ). OMB has approved the information collection requirements associated with NPS special-use permits and has assigned OMB control number 1024-0026 (expires 06/30/2013). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This rule implements portions of the FEIS and ROD, and is a major Federal action significantly affecting the quality of the human environment. In accordance with NEPA, NPS prepared the DEIS and the FEIS. The DEIS was released to the public on March 5, 2010, and a 60-day public comment period followed beginning on March 12, 2010. The FEIS was released on November 15, 2010. The NPS Notice of Availability and the EPA Notice of Availability for the FEIS were published in the Federal Register on November 15 and November 19, 2010, respectively. The FEIS evaluated six alternatives for managing off-road motorized vehicle access and use at the Seashore, including two no-action alternatives. The ROD, which selected Alternative F, was signed on December 20, 2010, and a notice of the decision was published in the Federal Register on December 28, 2010. The purpose of this rule is to implement the Selected Action as described in the ROD. A full description of the alternatives that were considered, the environmental impacts associated with the project, and public involvement is contained in the FEIS available online at: http://www.parkplanning.nps.gov/caha.

This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

This rule is effective on February 15, 2012. Under 5 U.S.C. 553(d), new rules ordinarily go into effect no less than thirty days after publication in the Federal Register , except under specified circumstances, including a finding by the agency that there is good cause for making the rule effective earlier. For this regulation, the NPS has determined under 5 U.S.C. 553(d) and 318 DM 6.25 that this rule should be effective no later than February 15, 2012. The NPS has found that good cause exists for this effective date, for the following reasons:

(1) The ROD for the FEIS, which this rule implements, was signed on December 20, 2010, and the public was informed of the availability of the FEIS and ROD through notice in the Federal Register on December 28, 2010. Therefore, by February 15, 2012, the public will have had 415 days notice of the NPS decision that forms the basis of this rule.

(2) An integral part of the FEIS and rule is the species management strategies described in the FEIS, which were developed to manage ORV use in a manner conducive to the protection of the migratory birds and sea turtle species that rely on the Seashore's beach habitat for nesting. The shorebird breeding season at the Seashore begins in early March. Implementation of the rule and the associated species management strategies would be most effective if the designated ORV routes and ORV permit and education requirements were implemented, and signs reflecting the new requirements were installed, prior to the start of the breeding season. A significant change in management procedures and information regarding ORV requirements implemented after the breeding season begins would compromise the efficiency and effectiveness of ORV management and species protection at the Seashore and be confusing to Seashore visitors.

(3) There is a court-approved deadline of February 15, 2012, for the rule to take effect, which would not be met if this rule were further delayed.

There is no benefit in delaying the effective date of this rule, and the above-described harms to the public resulting from a procedural delay of this rule should be avoided. An effective date of February 15, 2012, is therefore warranted.

In consideration of the foregoing, the National Park Service amends 36 CFR part 7 as follows:

Throughout this document, “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:

EPA is taking final action to conditionally approve a SIP revision submitted by the State of Missouri to EPA on January 17, 2007, and June 1, 2011. The purpose of these revisions is to ensure that certain sources of VOC emissions are controlled to a level which represents Reasonably Available Control Technology (RACT), and that certain source categories meet RACT levels consistent with Control Techniques Guidelines (CTGs) issued by EPA prior to 2006. EPA is also taking final action to approve several VOC rules adopted by Missouri and submitted to EPA in a letter dated August 16, 2011 for approval into its SIP. This latter submittal addresses VOC RACT requirements for sources in categories for which EPA issued CTGs during 2006-2008. The purpose of today's action is to conditionally approve the referenced SIP submissions as meeting the VOC RACT requirements of CAA section 182(b)(2) for the Missouri portion of the St. Louis metropolitan 8-hour ozone nonattainment area.

On October 25, 2011, EPA published in the Federal Register a proposed rulemaking to conditionally approve this SIP revision and to approve these VOC rules (76 FR 66013). EPA did not receive any public comments on this proposal.

This section briefly summarizes the background for today's final action. More detailed discussion of the statutory and regulatory background can be found in the preamble to the proposal for this rulemaking (see 76 FR at 66014-17).

The St. Louis metropolitan area, which includes the counties of Franklin, Jefferson, St. Charles and St. Louis, and the City of St. Louis in Missouri (as well as four counties in Illinois), is currently designated as a moderate nonattainment area under the 8-hour ozone standard. For areas in moderate nonattainment with the ozone NAAQS, CAA section 182(b)(2) requires states to submit SIP revisions to EPA that require sources of VOCs that are subject to a CTG issued by EPA, and all other major stationary sources, in the nonattainment area to implement RACT. 1

On January 17, 2007, the Missouri Department of Natural Resources (MDNR) submitted to EPA proposed SIP revisions demonstrating compliance with the RACT requirements set forth by the CAA under the 8-hour ozone NAAQS. This submittal addressed all source categories for which a CTG had been issued by EPA prior to 2006, and addressed the controls in place for all other major stationary sources in the nonattainment area. Since the development of the initial submittal by MDNR, EPA issued a number of new CTGs, in 2006, 2007, and 2008. States were then required to address RACT requirements for sources in the source categories covered by these CTGs. As a result, on June 1, 2011, MDNR submitted an amendment to its prior RACT demonstration.

With respect to the source categories for which a CTG had been issued by EPA prior to 2006, MDNR certified that all of the existing St. Louis area VOC rules satisfy RACT requirements for the 8-hour ozone standard. EPA proposed to approve this certification (see 76 FR at 66016) and did not receive any public comments on this proposal. Therefore, based on the rational stated in the proposal, EPA is approving this certification in today's action.

With respect to the source categories for which a CTG was issued by EPA beginning in 2006, MDNR submitted three revised rules to EPA for approval. EPA proposed to approve these rules in the proposed rulemaking (see 76 FR at 66016) and did not receive any public comments on this proposal. Therefore, in today's action, EPA finds that these revised rules address the RACT requirements and is approving these rules into the Missouri SIP. These rules cover the following source categories: 1) Industrial Surface Coating Operations (10 CSR 10-5.330), 2) Rotogravure and Flexographic Printing (10 CSR 10-5.340), and 3) Lithographic Printing Operations (10 CSR 10-5.442). For a more detailed description of the CTGs issued by EPA and the corresponding Missouri VOC rules which address these CTGs, see 76 FR at 66015-17.

Finally, in today's final action, EPA is conditionally approving the Missouri SIP revisions that address the requirements of RACT under the 8-hour ozone NAAQS. As discussed in the proposed rulemaking, at this time, EPA is unable to fully approve the state's RACT SIP revision because the current submittal does not yet meet all RACT requirements. Specifically, Missouri has not submitted RACT rules for inclusion into the Missouri SIP to address one CTG: Solvent Cleanup Operations. However, MDNR submitted a letter dated September 30, 2011, committing to submit a SIP to address the solvent cleaning CTG no later than December 31, 2012. Based on this commitment, pursuant to section 110(k)(4) of the CAA, EPA is conditionally approving Missouri's proposed SIP revision in today's action. Under that section, EPA may approve a SIP revision based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than one year after the date of approval of the SIP. Missouri must revise its rules to be consistent with the CAA ( i.e., it must adopt a specific enforceable measure to address RACT for solvent metal cleaning operations) no later than December 31, 2012. This conditional approval shall be treated as a disapproval if Missouri fails to comply with this commitment.

In today's rulemaking, EPA is taking the following final actions. First, with respect to Missouri's VOC RACT rules that EPA previously approved into Missouri's SIP under the 1-hour ozone standard, EPA is taking final action to approve Missouri's certification that these RACT controls continue to represent RACT under the 8-hour ozone standard. Second, EPA is taking final action to approve revisions to three of Missouri's VOC rules (10 CSR 10-5.330; 10 CSR 10-5.340; 10 CSR 10-5.442) into Missouri's SIP, as these rules satisfy RACT for the Missouri portion of the St. Louis nonattainment area. Third, pursuant to CAA section 110(k)(4), EPA is taking final action to conditionally approve the Missouri SIP revisions that address the requirements of RACT under the 8-hour ozone NAAQS. Missouri must submit a SIP revision addressing the solvent cleaning CTG discussed above, no later than December 31, 2012. This conditional approval shall be treated as a disapproval if Missouri fails to comply with this commitment.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 23, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review, nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

For detailed information regarding these actions, EPA prepared a Technical Support Document (TSD). The TSD can be viewed at http://www.regulations.gov . The following outline is provided to aid in locating information in this action.

Pursuant to section 179(c) of the CAA, EPA is making a determination that the Philadelphia Area attained the 1997 PM 2.5 NAAQS by its attainment date, April 5, 2010. This determination is based upon quality assured and certified ambient air monitoring data for the 2007-2009 monitoring period that shows the area has monitored attainment of the 1997 PM 2.5 NAAQS during this monitoring period.

EPA is also making a clean data determination, finding that the Philadelphia Area has attained the 1997 PM 2.5 NAAQS. This determination is based upon quality assured and certified ambient air monitoring data that show the area has monitored attainment of the 1997 PM 2.5 NAAQS for the 2007-2009 and 2008-2010 monitoring periods. After the effective date of this determination, the requirement for the Philadelphia Area to submit an attainment demonstration, RACM, an RFP plan, and contingency measures related to attainment of the 1997 PM 2.5 NAAQS shall be suspended for so long as the area continues to attain the 1997 PM 2.5 NAAQS. Although these requirements are suspended, EPA is not precluded from acting upon these elements at any time if submitted to EPA for review and approval. The States of Delaware and New Jersey, and the Commonwealth of Pennsylvania have submitted SIP revisions for their portions of the Philadelphia Area to EPA for review and approval.

On July 18, 1997, EPA established a health-based PM 2.5 NAAQS at 15.0 micrograms per cubic meter (µg/m 3 ) based on a 3-year average of annual mean PM 2.5 concentrations (“the annual PM 2.5 NAAQS” or “the annual standard”) (62 FR 36852). At that time, EPA also established a 24-hour standard of 65 μg/m 3 (the “1997 24-hour standard”). See, 40 CFR 50.7. On January 5, 2005, EPA published its air quality designations for the 1997 PM 2.5 NAAQS based upon air quality monitoring data for calendar years 2001-2003 (70 FR 944). These designations became effective on April 5, 2005. The Philadelphia Area, which includes the New Castle County in Delaware; Burlington, Camden, and Gloucester Counties in New Jersey; and Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties in Pennsylvania was designated nonattainment for the 1997 annual PM 2.5 NAAQS during this designations process. See, 40 CFR 81.308, 81.832, and 81.339. The attainment date for the 1997 annual PM 2.5 NAAQS is as expeditiously as practicable, but no more than five years from the date of designation. See, 40 CFR 51.1004(a). Therefore, the attainment date for the Philadelphia Area is April 5, 2010.

On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM 2.5 NAAQS at 15 μg/m 3 based on a 3-year average of annual mean PM 2.5 concentrations, and promulgated a 24-hour standard of 35 μg/m 3 based on a 3-year average of the 98th percentile of 24-hour concentrations (the “2006 24-hour standard”). On November 13, 2009, EPA published the area designations for the 2006 24-hour standard (74 FR 58688). That action, effective on December 14, 2009, designated the same Philadelphia Area as nonattainment for the 2006 24-hour standard and clarified that the Philadelphia Area is designated as unclassifiable/attainment for the 1997 24-hour PM 2.5 standard. This rulemaking only addresses the 1997 annual PM 2.5 standard and does not address the 1997 or the 2006 24-hour PM 2.5 standards.

In response to legal challenges of the 2006 annual standard, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanded this standard to EPA for further consideration. See, American Farm Bureau Federation and National Pork Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Circuit 2009). However, given that the 1997 and 2006 annual PM 2.5 standards are essentially identical, attainment of the 1997 annual standard would also indicate attainment of the remanded 2006 annual standard.

Under CAA section 179(c), not later than six months after an areas attainment date, EPA is required to make a determination that a nonattainment area has attained by its attainment date. EPA is required to publish that determination in the Federal Register .

Under the provisions of EPA's PM 2.5 implementation rule at 40 CFR 51.1004(c), if EPA issues a determination that an area is attaining the relevant standard (through a rulemaking that includes public notice and comment), then the area's obligations to submit an attainment demonstration, RACM, RFP plan, contingency measures, and any other planning SIPs related to attainment are suspended for as long as the area continues to attain. The clean data determination is not equivalent to a redesignation. The state must still meet the statutory requirements for redesignation in order for the area to be redesignated to attainment.

The States of Delaware, and New Jersey, and the Commonwealth of Pennsylvania (“the States”) submitted quality assured air quality monitoring data into the EPA Air Quality System (AQS) database for the 2007-2009 and 2008-2010 monitoring periods. The States then certified that data. EPA's evaluation of this data shows that the Philadelphia Area has attained the 1997 annual PM 2.5 NAAQS. Additional information on air quality data for the Philadelphia Area can be found in the TSD prepared for this action.

These actions do not constitute a redesignation to attainment under section 107(d)(3) of the CAA. The designation status of the Philadelphia Area will remain nonattainment for the 1997 annual PM 2.5 NAAQS until such time as EPA determines that the area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan.

EPA is making a determination that the Philadelphia Area has attained the 1997 annual PM 2.5 NAAQS by its applicable attainment date of April 5, 2010. Therefore, EPA has met its requirement pursuant to CAA section 179(c) to determine, based on the area's air quality as of the attainment date, whether the area attained the standard by that date. The effect of a final determination of attainment by the area's attainment date will be to discharge EPA's obligation under CAA section 179(c).

EPA is making a determination that the Philadelphia Area is attaining the 1997 annual PM 2.5 NAAQS. This determination of attainment suspends the CAA requirements for the Philadelphia Area to submit an attainment demonstration and the associated RFP plan, contingency measures, RACM analysis, and any other planning SIPs related to attainment of the 1997 annual PM 2.5 NAAQS. These requirements remain suspended for so long as the area continues to attain the 1997 annual PM 2.5 NAAQS.

The clean data determination suspends the requirement to submit an attainment demonstration, RACM, RFP plan, contingency measures, and any other planning SIPs related to attainment of the 1997 annual PM 2.5 NAAQS. This suspension remains in effect until such time, if any, that EPA (i) redesignates the area to attainment at which time those requirements no longer apply, or (ii) subsequently determines that the area has violated the 1997 annual PM 2.5 NAAQS. This determination is separate from, and does not influence or otherwise affect, any future designation determination or requirements for the area based on any new or revised PM 2.5 NAAQS. It remains in effect regardless of whether EPA designates this area as a nonattainment area for purposes of any new or revised PM 2.5 NAAQS. Although these requirements are suspended, EPA is not precluded from acting upon these elements.

The criteria for determining if an area is attaining the 1997 annual PM 2.5 NAAQS are set out in 40 CFR 50.13 and appendix N. The annual PM 2.5 NAAQS is met when the annual design value is less than or equal to 15.0 micrograms per cubic meter (μg/m 3 ). Three years of valid annual means are required to produce a valid annual standard design value. A year meets data completeness requirements when at least 75 percent of the scheduled sampling days for each quarter have valid data. The use of less than complete data is subject to the approval of EPA, which may consider factors such as monitoring site closures/moves, monitoring diligence, and nearby concentrations in determining whether to use such data.

While most of the monitoring data submitted by the States was complete, several monitors in the Philadelphia Area had less than four quarters of complete data for one or more year in both the 2007-2009 and 2008-2010 monitoring periods. For these monitors, EPA applied the data substitution test set out in the April 1999 EPA guidance document “Guideline on Data Handling Conventions for the PM NAAQS.” This “maximum quarter” test is used for monitors with missing data. Maximum recorded values are substituted for the missing data. The resulting design value is compared to the standard. The monitor passes if the design value with maximum values substituted meets the standard.

Considering 2007-2009 data, six monitors had less than complete data, and five of those monitors passed the maximum quarter test. Therefore, while the five monitors had less than complete data, EPA's evaluation shows that the monitors meet the NAAQS. Data handling for the sixth monitor is discussed below.

Considering 2008-2010 data, four monitors had less than complete data, and all four monitors passed the maximum quarter test. Therefore, while the four monitors had less than complete data, EPA's evaluation shows that the monitors meet the NAAQS. Details of EPA's analysis are set out in the TSD prepared for this action.

The maximum quarter test could not be used to show attainment, considering 2007-2009 data, for one monitor located in Chester County, Pennsylvania. For this monitor, EPA performed a statistical analysis of the data, in which a linear regression relationship is established between the site with incomplete data and a nearby site which has more complete data in the period in which the incomplete site is missing data. The linear regression relationship is based on time periods in which both monitors were operating. The linear regression equation developed from the relationship between the monitors is used to fill in missing data for the incomplete monitor, so that the normal data completeness requirement of 75 percent of data in each quarter of the three years is met. After the missing data for the site is filled in, the results are verified through an additional statistical test. The results of EPA's statistical analysis indicated that while the Chester County, Pennsylvania monitor had less than complete data, the data is sufficient to demonstrate that the NAAQS has been met. Details of this analysis are set out in the TSD prepared for this action.

Consistent with the requirements contained in 40 CFR part 50, EPA has reviewed the PM 2.5 ambient air monitoring data for the monitoring periods 2007-2009 and 2008-2010 for the Philadelphia Area, as recorded in the AQS database. On the basis of that review, EPA has concluded that the Philadelphia Area attained the 1997 annual PM 2.5 NAAQS based on data for the 2007-2009 and 2008-2010 monitoring periods.

According to the PM 2.5 implementation rule, the attainment date for the Philadelphia Area is April 5, 2010, and monitoring data from the period 2007-2009 is used to determine if the area attained by April 5, 2010. Table 1 shows the PM 2.5 design values for each monitor in the Philadelphia Area for the years 2007-2009. All 2007-2009 design values are below 15.0 μg/m 3 and EPA's evaluation shows that all monitors meet the NAAQS. Therefore, the Philadelphia Area attained the 1997 annual PM 2.5 NAAQS by its attainment date.

Table 2 shows the PM 2.5 design values for each monitor in the Philadelphia Area for the years 2008-2010. All 2008-2010 design values are below 15.0 μg/m 3 and EPA's evaluation shows that all monitors meet the NAAQS. Therefore, the Philadelphia Area attained the 1997 annual PM 2.5 NAAQS.

EPA is making two determinations regarding the Philadelphia Area. First, EPA is making a determination that the Philadelphia Area has attained the 1997 annual PM 2.5 NAAQS. This clean data determination suspends the requirements for the Philadelphia Area to submit an attainment demonstration and associated RACM, RFP plan, contingency measures, and any other planning requirements related to attainment of the 1997 annual PM 2.5 NAAQS, as provided in 40 CFR 51.1004(c), so long as the area continues to attain the 1997 annual PM 2.5 NAAQS. Second, pursuant to section 179(c) of the CAA, EPA is making a determination that the Philadelphia Area has attained the 1997 annual PM 2.5 NAAQS by its attainment date, April 5, 2010. These determinations are based upon complete, quality assured, and certified ambient air monitoring data that show the area has monitored attainment of the 1997 annual PM 2.5 NAAQS for the 2007-2009 and 2008-2010 monitoring periods.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on March 23, 2012 without further notice unless EPA receives adverse comment by February 22, 2012. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

This action makes determinations of attainment based on air quality, and result in the suspension of certain federal requirements. This action does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this determination that the Philadelphia Area has attained the1997 annual PM 2.5 NAAQS does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing these actions and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 23, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This determination that the Philadelphia Area has attained the 1997 annual PM 2.5 NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

I. Authorization of State-Initiated Changes A. Why are revisions to State programs necessary?

States which have received Final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal hazardous waste program. As the Federal program changes, the States must change their programs and ask the EPA to authorize the changes. Changes to State hazardous waste programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279. States can also initiate their own changes to their hazardous waste program and these changes must then be authorized.

We conclude that New Mexico's revisions to its authorized program meet all of the statutory and regulatory requirements established by RCRA. We found that the State-initiated changes make New Mexico's rules more clear or conform more closely to the Federal equivalents and are so minor in nature that a formal application is unnecessary. Therefore, we grant New Mexico final authorization to operate its hazardous waste program with the changes described in the table at Section G below. New Mexico has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out all authorized aspects of the RCRA program, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in New Mexico, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in New Mexico subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. New Mexico has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses, or reports;

• Enforce RCRA requirements and suspend or revoke permits; and

• Take enforcement actions after notice to and consultation with the State.

This action does not impose additional requirements on the regulated community because the statutes and regulations for which New Mexico is being authorized by this direct action are already effective and are not changed by this action.

The EPA did not publish a proposal before this rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the Proposed Rules section of this Federal Register , we are publishing a separate document that proposes to authorize the State program changes.

If the EPA receives comments that oppose this authorization or the incorporation-by-reference of the State program, we will withdraw this rule by publishing a timely document in the Federal Register before the rule becomes effective. The EPA will base any further decision on the authorization of the State program changes, or the incorporation-by-reference, on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. If you want to comment on this authorization and incorporation-by-reference, you must do so at this time. If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program or the incorporation-by-reference of the State program, we may withdraw only that part of this rule, but the authorization of the program changes or the incorporation-by-reference of the State program that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization or incorporation-by-reference of the State program will become effective and which part is being withdrawn.

The State of New Mexico initially received Final authorization effective January 25, 1985, (50 FR 1515) to implement its Base Hazardous Waste Management program. Subsequently, the EPA approved additional program revision applications effective April 10, 1990 (55 FR 4604); July 25, 1990 (55 FR 28397); December 4, 1992 (57 FR 45717); August 23, 1994 (59 FR 29734); December 21, 1994 (59 FR 51122); July 10, 1995 (60 FR 20238); January 2, 1996 (60 FR 53708) as affirmed by the EPA in the Federal Register notice published on January 26, 1996 (61 FR 2450)); March 10, 1997 (61 FR 67474); October 9, 2001 (66 FR 42140); October 16, 2007 (72 FR 46165); May 26, 2009 (74 FR 12625), and December 27, 2010 (75 FR 65432).

The State has made amendments to the provisions listed in the table which follows. These amendments clarify the State's regulations and make the State's regulations more internally consistent. The State's laws and regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the Federal laws and regulations. These State-initiated changes satisfy the requirements of 40 CFR 271.21(a). We are granting New Mexico final authorization to carry out the following provisions of the State's program in lieu of the Federal program. These provisions are analogous to the indicated RCRA regulations found at 40 CFR as of July 1, 2008. The New Mexico provisions are from the New Mexico Administrative Code (NMAC), Title 20, Chapter 4, effective March 1, 2009.

This authorization does not affect the status of State permits and those permits issued by the EPA because no new substantive requirements are a part of these revisions.

New Mexico is not authorized to carry out its Hazardous Waste Program in Indian Country within the State. This authority remains with EPA. Therefore, this action has no effect in Indian Country.

Codification is the process of placing a State's statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs to operate in lieu of the Federal hazardous waste management regulatory program. The EPA codifies its authorization of State programs in 40 CFR part 272 and incorporates by reference State statutes and regulations that the EPA will enforce under sections 3007 and 3008 of RCRA and any other applicable statutory provisions.

The incorporation by reference of State authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the authorized State program and State requirements that can be Federally enforced. This effort provides clear notice to the public of the scope of the authorized program in each State.

The EPA incorporated by reference New Mexico's then authorized hazardous waste program effective December 13, 1993 (58 FR 52677); August 21, 1995 (60 FR 32113); November 18, 1996 (61 FR 49265); July 13, 1998 (63 FR 23224); October 27, 2003 (68 FR 51487); and December 29, 2008 (73 FR 63897). In this document, the EPA is revising Subpart GG of 40 CFR part 272 to include the recent authorization revision actions effective May 26, 2009 (74 FR 12625) and December 27, 2010 (75 FR 65432).

The purpose of this Federal Register document is to codify New Mexico's base hazardous waste management program and its revisions to that program. The EPA provided notices and opportunity for comments on the Agency's decisions to authorize the New Mexico program, and the EPA is not now reopening the decisions, nor requesting comments, on the New Mexico authorizations as published in the Federal Register notices specified in Section B of this document.

This document incorporates by reference New Mexico's hazardous waste statutes and regulations and clarifies which of these provisions are included in the authorized and Federally enforceable program. By codifying New Mexico's authorized program and by amending the Code of Federal Regulations, the public will be able to more easily discern the status of Federally approved requirements of the New Mexico hazardous waste management program.

The EPA is incorporating by reference the New Mexico authorized hazardous waste program in subpart GG of 40 CFR part 272. Section 272.1601 incorporates by reference New Mexico's authorized hazardous waste statutes and regulations. Section 272.1601 also references the statutory provisions (including procedural and enforcement provisions) which provide the legal basis for the State's implementation of the hazardous waste management program, the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are approved as part of the hazardous waste management program under Subtitle C of RCRA.

The EPA retains its authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in authorized States. With respect to these actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than any authorized State analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved New Mexico procedural and enforcement authorities. Section 272.1601(c)(2) of 40 CFR lists the statutory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.

The public needs to be aware that some provisions of New Mexico's hazardous waste management program are not part of the Federally authorized State program. These non-authorized provisions include:

(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));

(2) Federal rules for which New Mexico is not authorized, but which have been incorporated into the State regulations because of the way the State adopted Federal regulations by reference.

State provisions that are “broader in scope” than the Federal program are not part of the RCRA authorized program and the EPA will not enforce them. Therefore, they are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.1601(c)(3) lists the New Mexico regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. “Broader in scope” provisions cannot be enforced by the EPA; the State, however, may enforce such provisions under State law.

With respect to any requirement pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized, the EPA will continue to enforce the Federal HSWA standards until the State is authorized for these provisions.

The EPA is not amending 40 CFR part 272 to include HSWA requirements and prohibitions that are implemented by the EPA. Section 3006(g) of RCRA provides that any HSWA requirement or prohibition (including implementing regulations) takes effect in authorized and not authorized States at the same time. A HSWA requirement or prohibition supersedes any less stringent or inconsistent State provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985). The EPA has the authority to implement HSWA requirements in all States, including authorized States, until the States become authorized for such requirement or prohibition. Authorized States are required to revise their programs to adopt the HSWA requirements and prohibitions, and then to seek authorization for those revisions pursuant to 40 CFR part 271.

Instead of amending the 40 CFR part 272 every time a new HSWA provision takes effect under the authority of RCRA section 3006(g), the EPA will wait until the State receives authorization for its analog to the new HSWA provision before amending the State's 40 CFR part 272 incorporation by reference. Until then, persons wanting to know whether a HSWA requirement or prohibition is in effect should refer to 40 CFR 271.1(j), as amended, which lists each such provision.

Some existing State requirements may be similar to the HSWA requirement implemented by the EPA. However, until the EPA authorizes those State requirements, the EPA can only enforce the HSWA requirements and not the State analogs. The EPA will not codify those State requirements until the State receives authorization for those requirements.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. The reference to Executive Order 13563 (76 FR 3821 January 21, 2011) is also exempt from review under Executive orders 12866 (56 FR 51735, October 4, 1993). This rule incorporates by reference New Mexico's authorized hazardous waste management regulations and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule merely incorporates by reference certain existing State hazardous waste management program requirements which the EPA already approved under 40 CFR part 271, and with which regulated entities must already comply, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This action 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely incorporates by reference existing authorized State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also does not have Tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000).

This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

The requirements being codified are the result of New Mexico's voluntary participation in the EPA's State program authorization process under RCRA Subtitle C. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective March 23, 2012.

For the reasons set forth in the preamble, under the authority at 42 U.S.C. 6912(a), 6926, and 6974(b), the EPA is granting final authorization under part 271 to the State of New Mexico for revisions to its hazardous waste program under the Resource Conservation and Recovery Act and is amending 40 CFR part 272 as follows:

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season apportionment of the 2012 Pacific cod TAC allocated as a directed fishing allowance to pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI is 9,950 metric tons as established by the final 2011 and 2012 harvest specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011) and inseason adjustment (76 FR 81875, December 29, 2011).

In accordance with § 679.20(d)(1)(iii), the Administrator, Alaska Region, NMFS, has determined that the A season apportionment of the 2012 Pacific cod TAC allocated as a directed fishing allowance to pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by pot catcher vessels greater than or equal to 60 feet (18.3 m) LOA in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 17, 2012.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.