In 1992, OGE published the Standards of Ethical Conduct for Employees of the Executive Branch, as codified at 5 CFR part 2635 and effective February 3, 1993, which established uniform standards of ethical conduct applicable to all executive branch personnel.

The National Defense Authorization Act (Pub. L. 110-181) established SIGAR. The agency's mission is to provide independent oversight of the treatment, handling, and expenditure of funds appropriated or otherwise made available for the reconstruction of Afghanistan; detect and deter fraud, waste, and abuse of U.S. funds; and promote actions to increase program economy, efficiency, and effectiveness. Afghanistan reconstruction includes any major contract, grant, agreement, or other funding mechanism entered into by any department or agency of the United States government that involves the use of amounts appropriated, or otherwise made available for the reconstruction of Afghanistan with any private entity to: (1) Build or rebuild physical infrastructure of Afghanistan, (2) establish or reestablish political or societal institutions of Afghanistan, (3) build the Afghanistan National Security Forces, and (4) provide products or services to the people of Afghanistan.

Given the importance of the agency's mission and the need to maintain objectivity and independence, SIGAR, through the proposed provisions, would require prior agency approval before employees engage in certain outside activities. Part 2635.105 authorizes executive branch agencies, with the concurrence of OGE, to publish such agency-specific supplemental regulations as may be necessary to implement their respective ethics programs. SIGAR, with OGE's concurrence, has determined that the following supplemental regulation is necessary, given SIGAR's unique status and mission, to implement the agency's ethics program.

Section 9303.101 explains that the regulations apply to all SIGAR employees and supplement the executive branch-wide Standards in 5 CFR part 2635. Section 9303.101 also provides a cross-reference to the executive branch-wide financial disclosure regulations contained in 5 CFR part 2634, the executive branch-wide regulation regarding outside employment at 5 CFR part 2636, and the regulation concerning executive branch financial interests contained in 5 CFR part 2640.

Under 5 CFR 2635.803, agencies may, by supplemental regulations, require employees to obtain approval before engaging in outside employment and activities. SIGAR has determined that it is necessary to the administration of its ethics program to require its employees, other than special Government employees, to obtain prior approval for certain types of outside employment and activities. This approval requirement will help to ensure that potential ethical problems are resolved before employees begin outside employment or activities that could involve a violation of applicable laws and regulations.

Under § 9303.102(a)(1), SIGAR employees must obtain prior approval regarding the provision of professional services that involve the application of the same specialized skills or the same educational background as performance of the employee's official duties. Such outside activities may raise a strong risk of a violation of the Standards. For purposes of this section, the definition of “professional services” in § 9303.102(d)(3) reflects the definition of “profession” as provided at 5 CFR 2636.305(b)(1), and means the provision of personal services by an employee, including the rendering of advice or consultation, which involves application of the skills of a profession. Secretarial and clerical positions are not, for purposes of this requirement, considered to provide “professional services.”

Under § 9303.102(a)(2), SIGAR employees must obtain prior approval regarding teaching, speaking, or writing that relates to the employee's official duties. This section requires prior approval of outside speaking and writing, as well as outside teaching, but only if it “relates to the employee's official duties.” Consistent with the Standards, the term “relates to the employee's official duties” is defined in § 9303.102(d)(5) as having the meaning provided in 5 CFR 2635.807(a)(2)(i)(B) through (a)(2)(i)(E). To summarize that definition, teaching, speaking, or writing relates to the employee's official duties if the invitation to teach, speak, or write is extended primarily because of the employee's official position; if the invitation or the offer of compensation (when the employee is to be compensated for the activity) is extended by a person whose interests may be affected substantially by the employee's performance or nonperformance of his or her official duties; if the activity draws substantially on “nonpublic information,” a term which § 9303.102(d)(2) defines as having the meaning set forth in § 2635.703(b) of the Standards and which therefore includes information that the employee gains by reason of Federal employment and that the employee knows or reasonably should know has not been made available to the general public; if the subject of the activity deals in significant part with SIGAR programs, operations or policies, or with the employee's current or recent assignments; or, in the case of a non-career employee as defined in 5 CFR 2636.303(a), if the subject of the activity deals in significant part with the general subject matter area, industry, or economic sector primarily affected by the programs and operations of SIGAR.

Under § 9303.102(a)(3), SIGAR employees must obtain prior approval regarding certain services for a “prohibited source.” The term “prohibited source” is defined in § 9303.102(d)(4) as having the meaning set forth in § 2635.203(d) of the Standards, and therefore in summary includes a person or organization, a majority of whose members seek official action by SIGAR, do or seek to do business with SIGAR, are subject to oversight by SIGAR pursuant to sections 1229 and 842 of the National Defense Authorization Act for FY 2008, Pub. L. No. 110-181, or who may be substantially affected by the performance or nonperformance of the employee's duties. The kind of services for a prohibited source for which § 9303.102(a)(3) requires prior approval are those that could raise a question of conflicting financial interests under subpart D of the Standards or a question of loss of impartiality in performing official duties under subpart E of the Standards. Those services include service as an officer, director, trustee, general partner, employee, agent, attorney, consultant, contractor, or “active participant.” The term “active participant” is defined in § 9303.102(d)(1) as having the meaning set forth in subpart E of the Standards, at 5 CFR 2635.502(b)(1)(v). In accordance with that definition, payment of dues to an organization, or the donation or solicitation of financial support, alone does not constitute active participation.

An exception to the prior approval requirement in § 9303.103(a)(3) excludes from the prior approval requirement therein a number of uncompensated and volunteer activities that are unlikely to raise issues under the Standards. Specifically, employees do not have to obtain approval before providing the services listed in § 9303.102(a)(3), if the service is without compensation (other than reimbursement of expenses) and the prohibited source for which the service is to be provided is a nonprofit charitable, religious, professional, social, fraternal, educational, recreational, public service, or civic organization. However, prior approval for such an activity is required if the activity is covered by another of the prior approval requirements in this section.

Under § 9303.102(a)(4), SIGAR employees must obtain prior approval regarding the provision of services, other than clerical services or service as a fact witness, on behalf of any other person in connection with a particular matter in which the United States is a party, in which the United States has a direct and substantial interest, or if the provision of services involves the preparation of materials for submission to, or representation before, a Federal court or executive branch agency. Under 5 CFR 2635.805, employees are required to obtain authorization before acting as expert witnesses, other than on behalf of the United States, in any proceeding before a Federal court or agency in a matter in which the United States is a party or has a direct and substantial interest. Paragraph (a)(4) of § 9303.102 is intended to cover such testimony as an outside activity, thus eliminating the need to create a separate procedure for the required authorization. In addition, requiring prior approval under these circumstances will help employees to avoid violating the representational bars in 18 U.S.C. 203 and 205.

Section 9303.102(b) sets forth the procedures for submitting a request for approval of an outside activity, specifying the information to be included in the employee's request, and the contents of a certification the employee is to submit with the request for approval.

Section 9303.102(c) specifies the standard for granting approval. Approval shall be granted only upon a determination by the agency official who is the designated authority to make such a determination that the outside employment is not expected to involve conduct prohibited by statute or Federal regulation.

Section 9303.102(d) defines the terms “active participant,” “nonpublic information,” “professional services,” “prohibited source,” and “relates to the employee's official duties,” for purposes of the section, as explained above, consistent with the Standards and other regulations issued by OGE.

Requiring prior approval will give SIGAR managers the opportunity to review the proposed employment or activity in light of the employee's official duties and to consult with an agency ethics official concerning the applicability of Federal conflict of interest statutes and ethics regulations to the proposed activity. The executive branch-wide Standards, at 5 CFR 2635.802, explain that an activity conflicts with an employee's official duties if it is prohibited by statute or by an agency supplemental regulation, or if, under the standards set forth in §§ 2635.402 and 2635.502 of the Standards, it would require the employee's disqualification from matters so central or critical to the performance of the employee's official duties that the employee's ability to perform the duties of his or her position would be materially impaired. Even when prior approval is not required, conflict of interest statutes and the Standards may restrict the actions of employees in connection with participation in such activities or organizations.

Under 5 U.S.C. 1103(b)(1) and 1105, these regulations are not subject to the rulemaking requirements of the Administrative Procedure Act, at 5 U.S.C. 553(b), (c), and (d), because they apply solely to SIGAR or its employees. Furthermore, SIGAR finds good cause that it is in the public interest that these internal regulations take effect as an interim rule upon the date of publication of this Federal Register rulemaking document. In issuing a final rule on this matter, SIGAR will consider all written comments on this rule that are submitted by the June 5, 2012 due date.

As Acting Inspector General of SIGAR, I have determined under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this rule will not have a significant economic impact on a substantial number of small entities because it will primarily affect SIGAR employees.

As Acting Inspector General of SIGAR, I have determined that the Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply to this rule, because it does not contain any information collection requirements that would require the approval of the Office of Management and Budget.

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this rule would not significantly or uniquely affect small governments and would not result in increased expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.

SIGAR has determined that this rule is not a rule as defined in 5 U.S.C. 804 and, thus, does not require review by Congress.

In promulgating this rule, SIGAR has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. This rule has not been reviewed by the Office of Management and Budget under that Executive order, since it deals with agency organization, management, and personnel matters and is not in any way event deemed “significant” thereunder.

As Acting Inspector General of SIGAR, I have reviewed this rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

For the reasons set forth in the preamble, the Special Inspector General for Afghanistan Reconstruction, with the concurrence of the Office of Government Ethics, is amending chapter LXXXIII of title 5 of the Code of Federal Regulations by adding part 9303 to read as follows:

Table of Contents I. Executive Summary II. Introduction A. Statutory and Regulatory History B. Background Information III. General Discussion of Final Rule IV. Section-by-Section Analysis A. § 75.360 Preshift Examination at Fixed Intervals B. § 75.361 Supplemental Examination C. § 75.362 On-Shift Examination D. § 75.363 Hazardous Conditions and Violations of Mandatory Health or Safety Standards; Posting, Correcting, and Recording E. § 75.364 Weekly Examination V. Executive Orders 12866 and 13563: Regulatory Planning and Review A. Population at Risk B. Benefits C. Compliance Costs VI. Feasibility A. Technological Feasibility B. Economic Feasibility VII. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act A. Definition of a Small Mine B. Factual Basis for Certification VIII. Paperwork Reduction Act of 1995 A. Summary B. Details IX. Other Regulatory Considerations A. The Unfunded Mandates Reform Act Of 1995 B. Executive Order 13132: Federalism C. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families D. Executive Order 12630: Government Actions and Interference With Constitutionally Protected Property Rights E. Executive Order 12988: Civil Justice Reform F. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking X. References I. Executive Summary A. Purpose of the Regulatory Action

Effective preshift, supplemental, on-shift, and weekly examinations are the first line of defense to protect miners working in underground coal mines. After analyzing the Agency's accident reports and enforcement data for underground coal mines covering a 5-year period, MSHA determined that the same types of violations of health or safety standards are found by MSHA inspectors in underground coal mines every year and that these violations present some of the most unsafe conditions for coal miners. These repeated violations expose miners to unnecessary safety and health risks that should be found and corrected by mine operators. The final rule will increase the identification and correction of unsafe conditions in mines earlier, removing many of the conditions that could lead to danger, and improve protection for miners in underground coal mines.

Section 303 of the Federal Mine Safety and Health Act of 1977 (Mine Act), which retained without change the language of the Federal Coal Mine Health and Safety Act of 1969, requires preshift [section 303(d)(1)], on-shift [section 303(e)], and weekly [section 303(f)] mine examinations for hazardous conditions; and preshift and weekly examinations for compliance with health or safety standards. The final rule is consistent with the provisions in the Mine Act that require examinations for compliance with health or safety standards in addition to hazardous conditions.

The final rule revises MSHA's requirements for preshift, supplemental, on-shift, and weekly examinations of underground coal mines to require operators to identify and correct violations of nine health or safety standards related to ventilation, methane, roof control, combustible materials, rock dust, other safeguards, and guarding, in addition to hazardous conditions. These nine standards are consistent with MSHA's “Rules to Live By” initiatives started in 2010 to prevent fatalities in mining. Violations of these nine standards represent the conditions or practices that, if uncorrected, present the greatest unsafe conditions and the most serious risks to miners. It is important to remind operators that if examiners observe other violations, they remain obligated, as they are under the existing standards, to address these violations. The final rule requires mine operators to record the actions taken to correct these violations.

The final rule, like the proposal, adds a new provision that requires the operator to review with mine examiners, on a quarterly basis, all citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. The questions and discussions that arise during the quarterly reviews will educate and enhance the skills and knowledge of the operators and the examiners to identify hazards and violations, resulting in continual improvement in the quality of mine examinations, the safety and health conditions in the mines, and protection for miners.

MSHA estimates that the rulemaking will result in approximately $17.0 million in yearly costs for the underground coal mining industry. MSHA estimates that the monetized benefit to underground coal mine operators, in reduced fatalities and injuries, is approximately $21.3 million yearly, resulting in a net benefit of approximately $4.3 million yearly. MSHA estimates that, on average, the final rule will prevent approximately 2.4 fatalities and 6.4 lost-time injuries per year.

Sections 303(d)(1), (e), and (f) of the Federal Mine Safety and Health Act of 1977 (Mine Act), which retained without change the language of the Federal Coal Mine Health and Safety Act of 1969 (Coal Act), set requirements for preshift, on-shift, and weekly examinations.

Section 303(d)(1) of the Mine Act requires that certified examiners conduct preshift examinations within 3 hours prior to the next shift. The preshift examinations are for specified hazards and for such other hazards and violations of the health or safety standards, as an authorized representative of the Secretary may from time to time require (30 U.S.C. 863(d)(1)). The purpose of the preshift examination is to identify and correct hazards and unsafe conditions, such as methane accumulations, water accumulations, and adverse roof conditions, before other miners travel underground to work their shift.

Section 303(e) of the Mine Act requires on-shift examinations for hazardous conditions (30 U.S.C. 863(e)). The purpose of the on-shift examination is to identify and correct hazards that develop during the shift.

Section 303(f) of the Mine Act requires weekly examinations for hazardous conditions and for compliance with health or safety standards (30 U.S.C. 863(f)). The purpose of the weekly examination is to identify and correct hazards and violations of standards that develop in remote and less frequently traveled areas of the mine, such as worked-out areas and bleeder entries that carry away methane. Methane accumulations in these areas could result in an explosion if they are not discovered and removed from the mine.

On November 20, 1970, MSHA issued a final rule for preshift, on-shift, and weekly examinations for hazardous conditions (35 FR 17890). The final rule restated the statutory provisions of the Coal Act, which were retained in the Mine Act.

On January 27, 1988 (53 FR 2382), MSHA issued a proposed rule to revise the requirements for preshift, on-shift, and weekly examinations and add a new requirement for supplemental examinations. After evaluating the comments, MSHA issued a final rule on May 15, 1992 (57 FR 20868). Neither the proposed rule nor the final rule included a requirement that mine examiners check for violations of health or safety standards.

On May 19, 1994, MSHA proposed revisions to the preshift examination standard (59 FR 26356) to require that examiners look for violations of health or safety standards that could result in a hazardous condition. The proposal had the potential to enhance safety by placing the mine operator in a proactive rather than a reactive role in finding and fixing conditions before hazards develop. After evaluating the comments, MSHA issued a final rule on March 11, 1996 (61 FR 97640). In response to comments, the final rule did not include the proposed requirement that a preshift examination include examining for violations of health or safety standards. In the preamble to the 1996 final rule, MSHA stated its intent that examiners focus their attention on critical areas and the identification of conditions that pose a hazard to miners.

After reviewing accident investigation reports from nonfatal accidents from 2005 through 2009, MSHA identified a direct link between violations of nine standards and accidents that resulted in injuries and fatalities. During that 5-year period, MSHA found that the accident reports for 12 fatalities and 32 nonfatal injuries listed violations of one or more of the nine standards addressed by the final rule as contributing factors. The data shows that when left uncorrected these violations can create hazardous conditions and lead to accidents resulting in injuries and fatalities. Based on the data and the Agency's experience, MSHA determined that only focusing on hazardous conditions would not provide effective safety for miners. MSHA concluded that because the violations of the nine standards in the final rule repeatedly contributed to accidents, fatalities and injuries, the final rule would provide the greatest protection for underground coal miners.

On December 27, 2010 (75 FR 81165), MSHA issued a proposed rule that would have required underground coal mine operators to identify violations of health or safety standards during preshift, supplemental, on-shift, and weekly examinations. The proposal would also have required that mine operators record and correct violations and review with mine examiners, on a quarterly basis, all citations and orders issued in areas where these examinations are conducted. The Agency received comments on the proposed rule and held five public hearings in June and July 2011. These hearings were held in Denver, Colorado; Charleston, West Virginia; Birmingham, Alabama; Arlington, Virginia; and Hazard, Kentucky. The comment period closed on August 1, 2011.

Underground coal mines are dynamic work environments where the working conditions change rapidly and without warning. Diligent compliance with safety and health standards and safety conscious work practices provide an effective measure of protection against unsafe and hazardous conditions that lead to accidents and emergencies in underground coal mines.

Effective examinations are the first line of defense to protect miners working in underground coal mines. At the beginning of the shift, miners in an underground coal mine are particularly vulnerable to hazards and dangerous conditions in the workplace that developed during the prior shift; the preshift and supplemental examinations are intended to protect miners from such hazards and dangerous conditions. This final rule revises MSHA's existing standards to require that operators examine for violations of health or safety standards in addition to hazardous conditions; it provides more effective underground coal mine examinations and increased safety and health protection for miners.

In developing the final rule, MSHA reviewed accident investigation reports, the Agency's enforcement data for underground coal mines covering a 5-year period, and the public comments received in response to the proposal. After analyzing the accident reports and enforcement data, MSHA determined that the same types of violations of health or safety standards are found by MSHA inspectors in underground coal mines every year. These repeated violations expose miners to unnecessary safety and health risks that should be found and corrected by mine operators. MSHA's review found that the most frequently cited standards accounted for about 50 percent of the total violations at underground coal mines in 2009 and that these violations present some of the most unsafe conditions in underground coal mines.

These violations include the following safety and health conditions: Accumulations of combustible materials; violations of ventilation and roof control plans; insufficient incombustible content of rock dust; improperly constructed airlock doors; or improperly maintained ventilation controls. Absent other conditions, such as a misaligned conveyor belt, an operator might not consider these to be hazardous conditions. However, conditions in underground coal mines change rapidly—a roof that appears adequately supported can quickly deteriorate and fall; stoppings can crush out and short-circuit air currents; conveyor belts can become misaligned or belt roller bearings can fail, resulting in an ignition source; and methane can accumulate in areas where it may not have been detected.

The final rule identifies violations of nine standards, which if left uncorrected, pose the greatest risk to miners' safety. Because the existence of these violations poses the greatest risk to miners, the mine operator is required to identify and correct them. Violations of the nine standards in the final rule can, individually or together, quickly lead to hazardous conditions, and ultimately to disastrous consequences. They represent the types of violations identified in MSHA's “Rules to Live By” initiatives, as well as some of the contributory violations in the Accident Investigation Report of the Upper Big Branch Mine disaster.

An accumulation of fine coal dust (fuel) in an underground air course, for example, contains sufficient oxygen for ignition and is lacking only a heat source to present an immediate fire hazard. In this situation, operators must remove the fuel source (fine coal dust) from the mine because an electrical arc or improperly maintained conveyor belt roller could provide the heat source and start a fire. Compliance with the health or safety standards (e.g., for accumulations of combustible materials and maintenance of belt conveyors), in this instance, would provide two measures of safety—removing the fuel and heat source that could cause a fire.

Consistent with the Mine Act, this final rule revises MSHA's examination standards for underground coal mines to include a requirement that examiners conducting preshift, supplemental, on-shift, and weekly examinations identify not only hazardous conditions, but also violations of nine health or safety standards. In response to comments, MSHA has included those standards that represent nine of the most frequently cited violations by MSHA inspectors and are consistent with MSHA's Rules to Live By initiatives. These standards address unsafe conditions and hazards in underground coal mines that present dangers to miners. The final rule requires that mine examiners identify, record, and correct hazards and violations of these nine standards. It is important to remind operators that if examiners observe other violations, they remain obligated, as they are under the existing standards, to address these violations.

Many commenters opposed the proposed rule expressing concern that examinations for violations of all safety and health standards would diminish safety by distracting mine examiners from looking for the more serious hazardous conditions. These commenters noted that in previous rulemakings, after considering this same issue, MSHA decided against including this provision in the final rules. In support of their position, several commenters pointed to a statement in the preamble of MSHA's 1992 final rule in which the Agency stated that—

Commenters supporting the proposed requirement to examine for all violations stated that the proposal addresses a deficiency in the existing standard. They noted that, under the existing standard, a mine examiner might not record and correct an obvious violation of a health or safety standard because the examiner does not believe the violation to be a hazardous condition. MSHA inspection experience indicates that, if the violation is not recorded, operators often fail to correct the violations until they are cited by an MSHA inspector.

In response to commenters who stated that the proposed rule would distract examiners from more serious conditions and those who stated that examiners would overlook obvious violations, the final rule specifies the health or safety standards that must be included in preshift, supplemental, on-shift, and weekly examinations. These standards represent conditions or practices that, if uncorrected, could present the most unsafe conditions and serious risks to miners in underground coal mines. MSHA has identified violations of these standards as contributing to numerous fatalities occurring between 2000 and 2009, and most were emphasized in MSHA's Rules to Live By initiative started in 2010 to prevent fatalities in mining.

Under the final rule, examiners must examine for hazardous conditions and violations of the following nine standards:

These standards represent the conditions or practices that, if uncorrected, would present the greatest unsafe conditions and the most serious risks to miners in underground coal mines. In addition, based on MSHA data and experience, these also represent violations that are frequently found by MSHA inspectors year after year.

Violations of standards included in the final rule are the types of violations that well-trained and qualified examiners can observe while conducting effective examinations. Under the existing standards, violations of these standards may have gone undetected and uncorrected where operators did not believe that they were hazardous conditions. The final rule will provide for a more effective approach to safety and health and add a necessary margin of safety in a particularly dangerous work environment. It will also result in more effective and consistent examinations which assure that hazardous conditions and violations of the standards in the final rule will be timely identified and corrected. The final rule will continue to reflect MSHA's intent under the existing standards that operators prioritize and correct violations based on the seriousness of the hazard.

The final rule requires operators to be more proactive in their approach to mine health and safety and to find and fix violations of health or safety standards in the final rule before they become hazardous. As a result, conditions that might have been identified only by MSHA inspectors will now be found and corrected by the operator, and a culture of safety will be fostered at the mine. The final rule will also promote this culture of safety by requiring operators to review with mine examiners, on a quarterly basis, citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. The final rule will enhance miners' safety because violations of health or safety standards that present the greatest risks will be identified and corrected, removing many of the conditions that could lead to danger in underground coal mines.

The final rule revises the existing preshift examination standard to require operators to check for hazardous conditions and violations of nine health or safety standards in the rule. These standards represent areas which present unsafe conditions for miners where MSHA continues to find violations of safety and health standards. Consistent with the Mine Act, the final rule also provides that the District Manager may require examinations in other areas of the mine for hazardous conditions and for violations of safety or health standards, based on, for example, the violation history of the mine. Like the proposal, the final rule also requires operators to record hazards and all violations, along with the actions taken to correct them.

Some commenters were concerned that the proposed rule did not specify which standards in part 75 the mine examiners would be expected to identify and correct. They noted that while MSHA indicated that the proposed rule was intended to assure that violations of MSHA's most frequently cited standards were identified, the proposed rule language did not list those standards.

Several commenters suggested that MSHA include in the final rule language the violations of specific standards that examiners are expected to identify. Other commenters suggested that, if the proposal went forward, MSHA could limit the violations that examiners would look for to those covered by the Rules to Live By categories or conditions that are significant and substantial (S&S) violations. The nine standards specified in the rule are consistent with the standards identified in MSHA's Rules to Live By initiatives and derived from the ten most frequently cited standards discussed in the proposed rule and further analyzed in the preliminary regulatory economic analysis.

A number of commenters stated that there is not enough time allotted for preshift examinations to examine for all violations of the MSHA standards in 30 CFR part 75. Some commenters were concerned that, without allotting additional time for preshift examinations or limiting the list of standards they would be required to address, mine operators would be required to hire additional examiners. Some commenters indicated that mine examiners would need much more training to identify violations of all MSHA standards in part 75.

Commenters who supported the proposal stated that the rule addresses a deficiency in the existing standard because a mine examiner might not record and correct an obvious violation of a health or safety standard as the examiner might not believe the violation to be a hazardous condition. Other commenters were concerned that the proposal could place mine examiners in a difficult position. They noted that examiners could be disciplined or fired for missing some violations during their examinations even while they may be disciplined for finding many minor technical violations.

Commenters also stated that based on the proposed rule, a mine could get cited twice for the same violation—one citation for the violation of a health or safety standard and another citation for an inadequate examination. Under the existing regulation, operators must conduct required examinations and take required actions to comply with specific standards. The final rule does not change this existing requirement and enforcement practice.

Generally, at the beginning of an inspection, an inspector will review an operator's examination records. As is the case under the existing standard, recording a violation does not automatically result in a citation.

In the final rule, MSHA responds to commenters' concerns by including the requirement that operators conducting preshift examinations examine for violations of nine standards. Operators are, therefore, put on notice as to the specific violations that examiners must look for in their examinations. In this way, operators can better focus on conditions and practices that represent higher risks to miners in the time allotted for the preshift examination. Consistent with the Mine Act, under the final rule, operators remain responsible for all violations; responsible operators should have policies in place to find and fix all violations and record them.

As stated in the proposed rule, the final rule will require that operators conduct more thorough examinations of underground coal mines. By requiring examinations for violations of health or safety standards in the final rule, miners will be better protected because mine operators will correct unsafe conditions before they result in hazardous conditions. Mine operators must identify hazards and violations of the nine standards, and record these and violations of other health or safety standards found during their examination in the examination records; the operator must assure that they are corrected. Under the final rule, however, operators are not required to have examiners perform additional tests, take additional measurements, or open and examine equipment or boxes.

The mine operator is required by § 75.220(a)(1) to develop and follow a roof control plan and by § 75.370(a)(1) to develop and follow a mine ventilation plan approved by the District Manager. These plans are mine-specific and can sometimes be comprehensive and complex. MSHA expects that the operator will assure that the examiner should have broad knowledge of these plans.

Unlike the proposal, the final rule does not require operators to have examiners to look for violations of § 75.1725(a) related to mobile and stationary machinery and equipment (one of the most frequently cited standards). Many commenters opposed inclusion of this standard stating that it would require examiners to check permissibility, brakes, and electrical components. They stated that such tasks are beyond an examiner's knowledge and skills and that such tasks would consume most of the time allotted to conduct preshift examinations. In addition, they pointed out that other standards require the examination of mobile and stationary machinery and equipment and that adding a similar requirement to the preshift examination would be duplicative and unnecessary. Although § 75.1725(a) was part of the Rules to Live By I, available on MSHA's Web site at http://www.msha.gov/focuson/RulestoLiveBy/RulestoLiveByI.asp, the types of accidents in which the standard was cited would likely not have required a preshift, supplemental, on-shift, or weekly examination of the equipment involved.

In response to comments, the final rule does not include § 75.1725(a). MSHA's existing standards address the examination and maintenance of mobile and stationary machinery and equipment; this will provide necessary protection for miners.

Commenters who supported requiring operators to identify all violations stated that this would relieve examiners of the burden of determining whether a health or safety violation is hazardous at the time it is discovered, so that miners will be better protected. They added that the proposal would allow operators to learn about such conditions at an earlier time and abate the violations before they ever become hazardous. They stated that a requirement to identify and record all violations of health and safety standards instead of only those violations believed to be hazardous would simplify the examiner's task and make it more straightforward.

In response to these comments, the final rule requires operators to look for violations of nine safety or health standards which MSHA believes present unsafe conditions and risks to miners. Operators who examine for hazardous conditions and violations of the health or safety standards in the final rule will provide a safer workplace for their miners.

Some commenters were concerned that mine examiners would not be trained to recognize violations of all MSHA standards. Commenters stated that mine examiners are trained by state agencies, not MSHA, and none of the states require examinations to identify every condition that violates a standard. They pointed out that mine examiners are trained to recognize certain hazards. They were concerned that the proposal would require certified examiners to act as MSHA inspectors despite the lack of training on identifying violations of all health or safety standards.

As stated at the public hearings, operators are responsible under the Mine Act for finding and fixing violations of safety and health standards. Historically, MSHA accepted State certifications for mine examiners. The final rule addresses hazardous conditions required under the existing rule and violations of health or safety standards. Since violations of the nine standards generally relate to hazardous conditions covered by the existing rule, MSHA believes that the final rule will have only a minimal effect on states.

In response to questions from the MSHA Panel at the public hearings, some commenters provided information as to how they examine for violations of safety and health standards. The examinations in this final rule should represent only part of an operator's program for finding and fixing violations. Since this final rule requires examinations for hazards and violations of nine safety or health standards which present unsafe conditions and risks to miners, MSHA does not believe that there is a need for any additional requirement for training mine examiners. In addition, MSHA believes that the new requirement in § 75.363(e) (that the operator review with examiners on a quarterly basis all citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required discussed elsewhere in the preamble), when conducted properly, provides examiners with necessary instruction to identify hazards and violations.

The final rule makes conforming changes to the existing requirement in § 75.360(a)(2) that allows pumpers, who are certified persons, to perform the preshift examination for themselves. Under the final rule, examinations conducted by pumpers must include hazardous conditions and violations of the nine standards. Like the existing rule, pumpers often work alone in remote areas of the mine. MSHA expects that the pumper would examine for hazardous conditions and violations of the nine standards. The pumper must record hazardous conditions and violations of the nine health or safety standards found during the preshift examination.

Some commenters addressed proposed § 75.360(e) that would permit the District Manager to require examinations in other areas of the mine for other hazards or violations of safety or health standards. Most of those commenters stated that this would add to the existing burden on both the District Managers and mine operators. Commenters were concerned that this would give the District Manager broad powers to dictate additional areas, other hazards, or violations to be examined by certified persons. Under the existing standard, the District Manager may require the certified person to examine other areas of the mine or examine for other hazards during the preshift examination.

It was the intent of Congress in the Mine Act and MSHA in the existing standard that the District Managers have the discretion to require additional examinations as necessary. MSHA's experience reveals that District Managers rarely exercise this discretion. Therefore, MSHA does not believe that this provision will result in additional costs. Consistent with the Mine Act, like the proposal, the final rule revises this provision to allow the District Manager to require additional examinations based on, among others, the violation history of the mine.

For example, if a mine is experiencing safety issues and violations due to obstructed walkways on the off side of the belt conveyor, it would be appropriate for the District Manager to require that the mine operator focus on this area. Most operators do not routinely examine the off side of the belt conveyor, but there are occasions when miners are required to work or travel on the off side, such as to align the belt, replace a roller, or remove accumulations. As another example, the District Manager may require a mine operator to verify that battery charging stations are adequately ventilated if a mine operator has received violations of § 75.340(a)(1)(i) for failure to ventilate battery charging stations with intake air that is directly coursed into a return air course or to the surface or with air that is not used to ventilate working places. MSHA believes that this provision is consistent with the Mine Act and is necessary to protect the safety and health of miners.

A number of commenters were concerned about the recordkeeping requirements in proposed §§ 75.360(g), 75.363(a) and (b), and 75.364(h). Although commenters recognized the importance of recordkeeping, some were concerned that the proposal would increase recordkeeping dramatically.

MSHA understands that the final rule will increase recordkeeping requirements. The final rule requires that the operator focus on nine standards which present the greatest risks to miners in underground coal mines.

The final rule revises existing § 75.361(a) to require that the supplemental examination identify hazards and violations of nine standards to provide necessary protection for miners. As with the existing rule, operators cannot ignore violations of other standards seen during the examination. As discussed above, in response to comments, MSHA is adding language to make clear which violations operators are required to identify. The same language referencing these standards is also being added to the final requirements for preshift, on-shift, and weekly examinations.

The final rule revises existing § 75.362(a)(1) and (b) to require that the mine operators identify hazards and violations of the nine standards during any shift when anyone is assigned to work on the section and where mechanized mining equipment is being installed or removed. Like the existing rule, operators cannot ignore violations of other standards seen during the examination. As discussed above, in response to comments, the final rule clarifies that operators are required to look for violations of nine standards, in addition to hazards, while also recording and correcting violations of other standards when they see them.

The final rule revises existing § 75.363 to require the mine operator to post hazardous conditions, correct, and record hazardous conditions and violations of all health or safety standards found during preshift, supplemental, on-shift, and weekly examinations and record the corrective actions taken. The final rule also includes a new requirement in § 75.363(e) that the operator review with examiners, on a quarterly basis, all citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. MSHA expects that, during the review, the operator and examiners would discuss the violations found since the previous review.

Some commenters were concerned about the recordkeeping requirements in proposed §§ 75.363(a) and (b) and 75.364(h); those comments were addressed above under the discussion of recordkeeping in § 75.360(g).

Commenters suggested that MSHA clarify what the Agency meant when it stated in the preamble that operators would have to correct violations within a reasonable time. They indicated that without such clarification, there could be a range of interpretations about what would be reasonable and whether this would be determined by the MSHA inspector or the company.

In the final rule, MSHA has not included a time frame for correcting violations but is relying on the Agency's historical practice related to mine operators' correction of violations. Consistent with its position in the preamble to the proposed rule, MSHA anticipates that operators will correct violations within a reasonable time period based on the conditions and circumstances at the mine. The mine operator is in the best position to determine the resources necessary to correct a violation including the time frame. If resources and personnel are available to correct a violation, the violation should be corrected at that time.

For example, a mine examiner is conducting an examination of a belt conveyor entry and identifies a broken roller as a violation. It is not generating any heat or sparks and, therefore, does not pose a hazard. To prevent the broken roller from becoming a potential fire hazard, the mine examiner removes the roller assembly. The mine examiner completes the examination of the belt conveyor entry and returns to the surface. The condition “damaged roller—needs replaced” is entered into the preshift examination book. The mine operator must order a new roller assembly, which will take two days to obtain and install. The mine operator places an order for the roller assembly and has the purchase order available for review by the inspector. The roller is ordered and replaced when it is received. In this particular example, the mine operator would not receive a citation.

Some commenters opposed proposed § 75.363(e), the requirement for quarterly reviews of citations and orders. They stated that quarterly meetings to review citations and orders with mine examiners are not needed because all citations are required to be posted in a conspicuous area. Other commenters supported the proposed requirement. They agreed that it makes sense to make mine examiners aware of citations, orders, and violations identified by inspectors in areas where examinations are required so the examiners can improve identification of recurring violations. Therefore, if citations and orders are being issued for violations other than the nine standards identified in the rule, the mine examiner will be better able to find and correct those violations as well.

MSHA believes that the final rule will result in continual improvement in the quality of mine examinations in underground coal mines and a greater level of protection for underground coal miners. The questions and discussions that arise during the quarterly reviews will educate operators and examiners and enhance their skills and knowledge.

The final rule revises the weekly examination standard to require operators to examine for hazards and violations of the nine standards to provide greater protection for miners. The operator must look for violations of the nine standards listed in the final rule, but also record and correct violations of other health or safety standards when they see them.

The weekly examination involving § 75.1403 will require operators to address maintenance of track haulage, off track haulage roadways, track switches, and other components for haulage. Since weekly examinations are required in worked out areas, bleeder entries, and air courses where equipment and conveyor belts are not typically installed, mine examiners are unlikely to encounter conditions related to § 75.1403—other safeguards, maintenance of travelways along belt conveyors; § 75.1722(a)—guarding moving machine parts; and § 75.1731(a)—maintenance of belt conveyor components.

The final rule includes conforming changes to require the identification, recording, and correcting of hazardous conditions and violations of the nine health or safety standards found during the weekly examinations.

MSHA has not prepared a separate regulatory economic analysis for this rulemaking. Rather, the analysis is presented below.

The final rule applies to all underground coal mines in the United States. The number of underground coal mines that MSHA used to estimate the cost of the final rule is the quarterly average of underground coal mines that reported employment underground at any time during 2010 regardless of production. Underground mines that only reported employment at the surface were not included since the examinations covered by this final rule are only performed when miners are working underground. The number of employees reflects the average underground employment at these mines for the year.

There are approximately 549 underground coal mines employing 51,706 miners, excluding office workers. Table 1 presents the number of underground coal mines and employment by mine size.

Underground coal mines produced an estimated 337 million short tons of coal in 2010. The average price of coal in underground mines in 2010 was $60.73 per short ton (Department of Energy (DOE), Energy Information Administration (EIA), Annual Coal Report 2010, November 2011, Table 28). Table 2 presents coal production and estimated revenues for 2010.

One of MSHA's primary goals with this rulemaking is to reduce violations of health or safety standards that occur in underground coal mines year after year. These violations ultimately lead to accidents, injuries, and illnesses. This section presents a summary of the potential benefits resulting from final rule changes to requirements for preshift, supplemental, on-shift, and weekly examinations in underground coal mines.

For informational purposes, MSHA provides estimates of monetized potential benefits of the final rule. Under the Mine Act, MSHA is not required to use monetized benefits or estimated net benefits as the basis for its decisions on standards designed to protect the health and safety of miners.

Based on the estimated prevention of 2.4 fatalities and 6.4 lost-time injuries per year, MSHA estimates that the final rule could result in monetized benefits of up to $21.3 million per year (2.4 × $8.7 million + 6.4 × $62,000). An explanation of the methodology MSHA relied upon to calculate the monetized benefits is presented towards the end of the benefits section.

To derive the estimated number of preventable injuries and fatalities used above, MSHA reviewed accident investigation reports from 2005 through 2009 where an inadequate examination of the underground work area contributed to the accident. MSHA further looked to see how many of those accidents involved, as a contributing factor, violations of nine standards cited by MSHA inspectors year after year.

Over the 5-year review period, there were 91 fatalities in underground coal mines. Of this total, the investigation reports for 15 of the fatalities (11 reports) specifically listed violations of the preshift, supplemental, on-shift, or weekly examinations standards as factors contributing to the accident. Although these fatalities involved conditions exposing risks to miners and violations of existing standards, the examiners did not perceive them as hazardous conditions. MSHA determined that only focusing on hazardous conditions would not provide effective safety for miners. Under the final rule, mine operators would be required to identify and correct these violations in addition to hazardous conditions.

Based on MSHA's review and the findings explained below, the final rule requires the examiner to identify and record, and the operator to correct, violations of the nine standards listed in the final rule that are found during preshift, supplemental, on-shift, or weekly examinations.

After analysis of the 15 fatalities, MSHA determined that nine of them involved violations of one or more of the health or safety standards listed in the final rule. MSHA concluded that, if these violations had been identified and corrected as required by the final rule, these nine fatalities, or approximately two fatalities per year (9 fatalities/5 years) could have been prevented.

MSHA also examined the fatal investigation reports that did not list violations of the preshift, supplemental, on-shift, or weekly examinations standards as contributing to the accident to determine if a violation of any of the nine standards in the final rule was listed as a contributing cause of the accident. Based on its review of these reports, MSHA determined that three additional fatalities could have been prevented by identifying violations of one or more of the nine standards and taking necessary corrective actions. Based on the frequency of the required examinations, MSHA believes that the examiner could have identified the violations during either the preshift or on-shift examination, triggering corrective action. Thus, MSHA estimates that the final rule could have prevented a total of up to 12 fatalities or 2.4 fatalities per year.

MSHA estimates that the final rule could have prevented 13 percent of the 91 fatalities that occurred in underground coal mines during the 5-year review period (12/91 fatalities). The fatal investigation reports for all 12 fatalities are included in the rulemaking docket at www.regulations.gov.

In addition to reducing the number of fatalities, the final rule also could reduce the number of injuries. For the 5-year review period, 2005 through 2009, MSHA reviewed the descriptions of 75 accidents involving 90 nonfatal injuries where the citation or order listed an inadequate examination, or a violation of one or more of the nine standards in the final rule, or both, as a contributing cause of the accident. Based on this review and its experience in investigating accidents, MSHA determined that the final rule could have prevented 32 nonfatal injuries or approximately 6.4 nonfatal injuries per year (32 nonfatal injuries/5 years).

Violations of the standards listed in the final rule create unsafe conditions for underground coal miners and are directly linked to fatalities and injuries. The final rule includes a new requirement in § 75.363(e) that the operator review with examiners, on a quarterly basis, all citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. This new requirement may provide qualitative benefits that increase over time.

MSHA expects that, during the review, the operator and examiners would discuss any hazards or violations found since the previous review. MSHA believes that the questions and discussions that arise during the quarterly reviews will educate and enhance the skills and knowledge of the operators and the examiners. This provision will promote a culture of safety, resulting in a continual improvement in the quality and effectiveness of mine examinations. This will ultimately lead to an overall improvement in compliance with health and safety standards at the mine, and provide a greater level of protection for underground coal miners. Furthermore, if the examinations and corrective actions are applied effectively, individual operators may see some reductions in the time and administrative staff associated with violations of mandatory health or safety standards.

Based on the nature of the standards in the final rule, MSHA believes that the final rule will also reduce respirable dust exposures in underground coal mines and reduce the incidence of black lung. According to a recent NIOSH report (2010), “[v]entilating air to a * * * mining section, whether blowing or exhausting, is the primary means of protecting workers from overexposure to respirable dust.” Mine examinations are critical to ensuring that all of the requirements in the mine ventilation plan, including the dust control plan, are in place and working. Examiners check section and outby ventilation controls and the respirable dust control parameters, which are key factors in reducing miners' exposure to respirable coal mine dust. The final rule will provide better identification and correction of violations of the ventilation standards. This, in turn, should lower miners' exposure to respirable coal mine dust, thereby lowering the incidence of black lung and other respiratory diseases. MSHA also is engaged in a separate rulemaking (RIN 1219-AB64, 75 FR 64412) that directly addresses miners' exposure to respirable coal mine dust. Due to lack of data, MSHA is unable to incrementally quantify the reduced incidence of disease attributable to this final rule alone.

MSHA based its estimates of the monetary values for the benefits on relevant literature. To estimate the monetary value of the reduction in fatalities, MSHA performed an analysis of the value of fatalities avoided based on a willingness-to-pay approach. This approach relies on the theory of compensating wage differentials in the labor market, (i.e., the wage premium paid to workers to accept the risks associated with various jobs). A number of studies have shown a correlation between higher risk on a job and higher wages, suggesting that employees demand monetary compensation in return for incurring a greater risk of injury or death.

Viscusi & Aldy (2003) conducted an analysis of studies that use a willingness-to-pay methodology to estimate the value of life-saving programs (i.e., meta-analysis) and found that each fatality avoided was valued at approximately $7 million and each lost work-day injury was approximately $50,000 in 2000 dollars. Using the Gross Domestic Product (GDP) Deflator (U.S. Bureau of Economic Analysis, 2010), this yields an estimate of $8.7 million for each fatality avoided and $62,000 for each lost work-day injury avoided in 2009 dollars. This value of a statistical life (VSL) estimate is within the range of the substantial majority of such estimates in the literature ($1 million to $10 million per statistical life), as discussed in OMB Circular A-4 (OMB, 2003).

Although MSHA is using the Viscusi & Aldy (2003) study as the basis for monetizing the expected benefits of the final rule, the Agency does so with several reservations, given the methodological difficulties involved in estimating the compensating wage differentials (Hintermann, Alberini, and Markandya, 2008). Furthermore, these estimates pooled across different industries may not capture the unique circumstances faced by coal miners. For example, some have suggested that VSL models be disaggregated to account for different levels of risk, as might occur in coal mining (Sunstein, 2004). In addition, coal miners may have few employment options and in some cases only one employer (near-monopsony or monopsony), which may depress wages below those in a more competitive labor market.

MSHA recognizes that monetizing the VSL is difficult and involves uncertainty and imprecision. In the future, MSHA plans to work with other agencies to refine the approach taken in this final rule.

A number of commenters disputed MSHA's analysis of the 11 fatal accident investigation reports discussed in the benefits section of the preamble to the proposed rule. One of these commenters noted that the report does not say how the investigators determined that the violations were present during the mine examinations. Another said that their review of the accident reports led them to disagree with MSHA's conclusion that the fatal injuries would have been prevented by examinations that identified violations as well as hazards.

Another commenter who reviewed the fatality reports stated that their analysis led them to conclude that the Agency's claims that nine of the 15 cited fatalities could have been prevented by examinations for violations of health or safety standards was not supportable. One commenter stated that it was not sound logic to conclude that if the violation had been identified by the examiner the accident would not have happened. He added that, in general, MSHA cites a condition or practice that caused the accident because something went wrong, but he noted that it is easy to point the finger after an accident. A number of commenters agreed that conditions often change after examinations are done.

A number of commenters addressed the potential benefits that MSHA indicated would be achieved if the proposed provisions were made final. A commenter who supported the proposed provisions said that, in their entirety, the data reveal that some accidents and injuries could have been avoided if the examiners had reported violations of standards as well as hazardous conditions. Another stated that MSHA needed to be more specific as to what it wants and what benefits MSHA thinks will be gained from the regulation. Others were uncertain about the data and experience MSHA relied on for these calculations, and suspected that the calculations were hugely understated.

As explained above, MSHA used accident reports that specifically listed violations of nine standards to derive the estimated benefits of the final rule. While the Agency feels that these accident reports best represent the types of violations that lead to injuries and fatalities, MSHA realizes that operators may find and correct violations of standards that were not considered when the Agency estimated the potential benefits and as a result the benefits above may be understated.

In this regulatory economic analysis section, MSHA provides estimated potential benefits of the final rule. MSHA includes supporting data for its estimates of benefits and describes the methodology used to derive those benefits. MSHA also has included two links in the benefits section where interested parties can view the raw data-sets that the Agency relied on for the analysis and determination of the estimated benefits.

Table 3 below presents the summary of annual costs for all underground coal mine operators. MSHA's response to comments on the economic analysis in the proposed rule and a summary cost analysis for anthracite mines can be found at the end of this cost analysis section.

The annualized benefits are $21.3 million while the annualized costs are $17.0 million. The estimates remain unchanged between years so changing the time period or the discount rate results in the same values over time or rate changes.

As stated previously in the industry profile section, MSHA used the quarterly average of active mines (549) that reported underground employment to estimate the costs for preshift, supplementary and weekly examinations because these examinations are only performed when miners are working underground. To estimate the cost for the on-shift examination, MSHA used the quarterly average of active mines reporting production (424) because on-shift examinations are typically performed on production shifts. MSHA used a conservative approach in estimating costs and as a result the cost figures may be overstated. This update to the number of mines resulted in an increase in total costs but not at the same rate of increase. The net effect is that the cost per mine is lower in the final rule than was presented in the proposed rule.

Because the examinations covered by this final rule are only performed when miners are working underground MSHA limited the cost estimates to mines that reported underground employment. MSHA is aware that, because of changing conditions and differing production schedules, not every mine with underground employment will perform each of the examinations nor will every mine perform them year-round; however, for the purpose of estimating average yearly costs, MSHA has assumed that mines with underground employment will perform each of the examinations year-round.

For the purpose of this analysis, MSHA estimates that preshift and on-shift examinations would be conducted by a supervisory certified examiner (paid an hourly rate of $84.69, including benefits); and that the supplemental and weekly examinations would be conducted by non-supervisory certified examiners (paid an hourly rate of $36.92, including benefits). MSHA also estimates that—

• Mines with 1-19 employees operate one shift per day, 200 days per year;

• Mines with 20-500 employees operate two shifts per day, 300 days per year; and

• Mines with 501+ employees operate three shifts per day, 350 days per year.

Final § 75.360 requires examiners conducting preshift examinations to identify violations of nine standards, in addition to examining for hazards, and record all violations found along with the corrective actions taken. MSHA estimates that it will take an examiner an additional 30 minutes (0.5 hr) per preshift examination to identify and record these violations and the corrective actions taken. Although the final rule narrows the scope of the preshift examination, from requiring the examiner to identify violations of all standards to requiring the examiner to identify violations of nine standards, the time estimates for the proposal were based on violations of ten of the most frequently cited standards by MSHA inspectors. MSHA, therefore, is using the same estimate for additional examination time (0.5 hr) as used in the proposed rule.

MSHA estimates that the additional time required for the preshift examinations will result in costs of approximately $11.3 million:

• $1.5 million in mines with 1-19 employees (172 mines × 1 exam/day × 200 days/yr × 0.5 hr × $84.69/hr);

• $9.3 million in mines with 20-500 employees (366 mines × 2 exams/day × 300 days/yr × 0.5 hr × $84.69/hr); and

• $500,000 in mines with 501+ employees (15 mines × 3 exams/day × 350 days/yr × 0.5 hr × $84.69/hr).

Final § 75.361 requires examiners conducting supplemental examinations to identify violations of nine standards, in addition to identifying hazards. MSHA estimates that it will take an examiner an additional 15 minutes (0.25 hr) to identify and record these violations and the corrective actions taken. Supplemental examinations are only performed in areas where a preshift examination has not been conducted. MSHA estimates that examiners would perform four supplemental examinations per year at mines with 1-19 employees and 24 supplemental examinations per year at mines with 20-500 employees and 501+ employees.

MSHA estimates that the additional time required for supplemental examinations will result in costs of approximately $90,000:

• $6,400 in mines with 1-19 employees (172 mines × 4 exams/mine × 0.25 hr/exam × $36.92/hr);

• $81,000 in mines with 20-500 employees (366 mines × 24 exams/mine × 0.25 hr/exam × $36.92/hr); and

• $2,400 in mines with 501+ employees (11 mines × 24 exams/mine × 0.25 hr/exam × $36.92/hr).

Final § 75.362 requires examiners conducting on-shift examinations to identify violations of nine standards, in addition to identifying hazards. MSHA estimates that it would take an examiner an additional 15 minutes (0.25 hr) to identify and record these violations and the corrective actions taken. Because on-shift examinations are performed during each production shift, MSHA used the quarterly average of active mines reporting production (424) to estimate the costs below.

MSHA estimates that the additional time required for on-shift examinations will result in estimated costs of approximately $4.8 million:

• $343,000 in mines with 1-19 employees (81 mines × 1 shift/day × 200 days/yr × 0.25 hr/shift × $84.69/hr);

• $4.2 million in mines with 20-500 employees (331 mines × 2 shifts/day × 300 days/yr × 0.25 hr/shift × $84.69/hr); and

• $267,000 in mines with 501+ employees (12 mines × 3 shifts/day × 350 days/yr × 0.25 hr/shift × $84.69/hr).

Final § 75.363(b) requires examiners to record all violations noted and the corrective actions taken for supplemental and on-shift examinations (preshift and weekly examinations have separate recordkeeping requirements and are not covered by this provision). The costs associated with this final requirement are included in cost estimates for final §§ 75.361 and 75.362 above.

Final § 75.363(e) is a new provision that requires the operator to review with mine examiners, on a quarterly basis, citations and orders issued in areas where preshift, supplemental, on-shift, and weekly examinations are required. MSHA estimates that 80 percent of underground coal mine operators currently discuss violations with examiners. Although some operators and examiners may meet less frequently and some more frequently, for costing purposes, MSHA assumes that these operators and examiners are meeting on a quarterly basis.

MSHA estimates that approximately 20 percent of mine operators do not currently discuss violations with examiners and would, therefore, incur new costs from this provision. MSHA estimates that 84 agents of the operators, 641 examiners for preshift and on-shift examinations, and 159 examiners for weekly and supplemental examinations would need to review the citations and orders as follows:

• 34 agents, 49 preshift and on-shift examiners, and 17 weekly and supplemental examiners in mines with 1-19 employees;

• 73 agents, 530 preshift and on-shift examiners, and 132 weekly and supplemental examiners in mines with 20-500 employees; and

• 2 agents, 62 preshift and on-shift examiners, and 10 weekly and supplemental examiners in mines with 501+ employees.

Examiners on preshift and on-shift exams are supervisory certified examiners earning an hourly wage of $84.69 and examiners on weekly and supplemental exams are non-supervisory certified examiners earning an hourly wage of $36.92. MSHA estimates the operator's agent conducting the review earns an hourly wage of $84.69.

MSHA estimates that these quarterly reviews will result in costs of approximately $548,000 per year:

• $31,000 in mines with 1-19 employees [(34 agents + 49 examiners) × $84.69/hr × 4 mtg × 1 hr/mtg] + [17 examiners × $36.92/hr × 4 mtg × 1 hr/mtg];

• $448,000 in mines with 20-500 employees [(73 agents + 530 examiners) × $84.69/hr × 4 mtg × 2 hr/mtg] + [132 examiners × $36.92/hr × 4 mtg × 2 hr/mtg]; and

• $69,000 in mines with 501+ employees [(2 agents + 62 examiners) × $84.69/hr × 4 mtg × 4 hr/mtg] + [10 examiners × $36.92/hr × 4 mtg × 4 hr/mtg].

Final § 75.364 requires operators to conduct examinations at least every 7 days to identify and record hazards and violations of nine health or safety standards.

MSHA estimates that it will take a certified examiner an additional 15 minutes (0.25 hr) to identify and record violations of standards and the corrective actions taken and that, on average, mines operate for 50 weeks per year.

The additional time required for weekly examinations for violations will result in costs of approximately $253,000 per year:

• $79,000 in mines with 1-19 employees (172 mines × 50 wk/yr × 0.25 hr/wk × $36.92/hr);

• $169,000 in mines with 20-500 employees (366 mines × 50 wk/yr × 0.25 hr/wk × $36.92/hr); and

• $5,000 in mines with 501+ employees (11 mines × 50 wk/yr × 0.25 hr/wk × $36.92/hr).

MSHA's cost estimates for recording corrective actions for hazards or violations found during preshift, supplemental, on-shift, and weekly examinations do not include costs for any corrective actions taken to eliminate the hazardous condition or comply with the health or safety standard identified during the mine examination. These compliance costs were included in the cost estimates associated with the existing standards and are not new compliance costs resulting from this final rule. Rather than waiting for violations to be either identified by an MSHA inspector or rise to the level of a hazardous condition and be identified by a mine examiner, the final rule requires mine operators to identify violations found during mine examinations.

MSHA estimates that the final rule could prevent some accidents because mine operators will be required to take corrective actions earlier than under the existing standards, i.e., before a hazardous condition develops or before they are cited by MSHA inspectors. Although the final rule will result in operators taking corrective actions promptly, before the violation develops into a hazard, it will not increase the costs of the corrective actions. MSHA requires mine operators, if cited, to correct a violation of a health or safety standard, such as removing coal dust accumulations from conveyor belts or maintaining ventilation controls for their intended purpose, to abate the citation. The MSHA inspector determines the time for abating the violation. If the violation is a hazardous condition, MSHA requires it to be corrected immediately.

A number of commenters were concerned that the final rule will force companies to hire additional personnel to meet the requirements of the proposed examinations provisions. One commenter pointed out that, if examiners were compelled to walk both sides of conveyor belts, it would require twice the time or two examiners for preshift examinations. Another stated that the cost of the proposed requirements are more than the cost analysis in the proposed rule shows, and provided detailed estimates for all four mine examinations. This commenter estimated that it would take an additional half-hour for a preshift examination per working section, and at their mine with three working sections, they would need an additional preshift examiner per shift. The commenter added that the mine is new, and examination times for short travel distances and belt lengths will increase as the mine develops.

In response to commenters, MSHA has narrowed the scope of the final rule from the proposal to match what MSHA originally intended and what was originally assumed in the analysis in the proposed rule. The final rule requires examiners to look for hazardous conditions and violations of nine standards. Under the final rule, MSHA intends that the examiner focus on those violations that present the most unsafe conditions. It is important to remind operators that, however, if examiners observe other violations, they remain obligated, as they are under the existing standards, to address these violations.

The existing rule requires that the preshift examination be conducted within 3 hours of the beginning of the oncoming shift, but most preshift examinations do not take the whole 3 hours. All the estimates of time, number of shifts, and working sections that MSHA uses in this cost section are the averages for all underground coal mines in a given size category and are not meant to be exact measurements for any individual mine.

As stated previously, MSHA does not intend that the final rule expand the examination to require additional tests or additional measurements, or to require examiners to open and examine equipment or boxes. MSHA expects the mine examiner to look for violations of these nine standards as they conduct their examinations and to complete the entire examination in the time allotted without the need for additional examiners.

In addition, several comments stated the need for a separate economic analysis of underground anthracite coal mines. One commenter indicated that the economic hardship on the anthracite underground mining community far exceeds the MSHA published figure of 0.43 percent of annual revenues for small mines with 1-19 employees and 0.12 percent for mines with 20-500 employees. The commenter provided several calculations to show that the economic impact on underground anthracite coal mines would be 36.1 percent of annual revenues for anthracite mines with 1-19 employees and 43.7 percent of annual revenues for anthracite mines with 20-500 employees.

In response to these comments, MSHA reviewed the commenter's calculations and found that, while the calculations used only revenues from anthracite mines, the cost estimates included the cost to all mines instead of the cost to anthracite mines only. Thus, the percentages of costs relative to revenues are overstated.

MSHA conducted a separate and more detailed analysis of the economic impact of the final rule on underground anthracite coal mines. Table 4 below summarizes industry data for underground anthracite coal mines.

Because anthracite mines are generally smaller than most bituminous mines and most violations of the standards in this final rule typically are not the types of conditions that are most cited found at underground anthracite underground mines, MSHA estimates that examination and recordkeeping times would be less for anthracite mines than the average used for all underground coal mines. After conducting this separate analysis with more accurate examination time estimates for anthracite mines, MSHA has determined that the cost of the final rule for anthracite mines will not exceed 1 percent of total anthracite coal mine revenues and will be economically feasible.

MSHA has included the results of the Agency's separate anthracite cost analysis for each provision in the final rule. Table 5 below presents the summary cost data for underground anthracite coal mines.

Taking the total cost to underground anthracite coal mines of $47,390 and dividing it by the total revenues in 2010 for underground anthracite coal mines of $8,251,300 the economic impact of the final rule to underground anthracite coal mines is 0.57 percent of total revenues ($47,390/$8.25 million).

MSHA has concluded that the requirements of the final rule are technologically and economically feasible. The existing regulations require mine operators to perform the examinations to identify hazardous conditions. The final rule expands the existing standards to require the mine examiner to identify violations of specific health or safety standards listed in the final rule.

MSHA concludes that the final rule is technologically feasible because it simply requires operators to identify, record, and correct violations of health or safety standards. There are no technology issues raised by the final rule.

MSHA concludes that the final rule is economically feasible. The U.S. underground coal mining sector produced an estimated 337 million short tons of coal in 2010. Multiplying the production by the 2010 price of underground coal of $60.73 per short ton yields estimated 2010 underground coal revenues of approximately $20.5 billion. MSHA estimated the yearly compliance cost of the final rule to be $17.0 million, which is 0.08 percent of revenues ($17.0 million/$20.5 billion) for underground coal mines. MSHA has traditionally used a revenue screening test—whether the yearly compliance costs of a regulation are less than 1 percent of revenues—to establish presumptively that compliance with the regulation is economically feasible for the mining community.

Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the impact of the final rule on small businesses. Based on its analysis, MSHA notified the Chief Counsel for Advocacy, Small Business Administration, and made the certification under the Regulatory Flexibility Act at 5 U.S.C. 605(b) that the final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is presented below.

Under the RFA, in analyzing the impact of the final rule on small entities, MSHA must use the Small Business Administration (SBA) definition for a small entity or, after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the Federal Register for notice and comment. MSHA has not taken such an action and must use the SBA definition. The SBA defines a small entity in the mining industry as an establishment with 500 or fewer employees.

In addition to examining small entities as defined by SBA, MSHA has also looked at the impact of this final rule on underground coal mines with fewer than 20 employees, which MSHA and the mining community have traditionally referred to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. Therefore, the cost of complying with the final rule and the impact of the final rule on small mines will also be different. It is for this reason that small mines are of special concern to MSHA.

MSHA initially evaluates the impact on “small entities” by comparing the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for the affected sector. When estimated compliance costs do not exceed 1 percent of the estimated revenues, the Agency believes it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. When estimated compliance costs exceed one percent of revenues, MSHA investigates whether a further analysis is required.

For underground coal mines, the estimated preliminary 2010 production was approximately 3.7 million tons for mines that had fewer than 20 employees and 251 million tons for mines that had 500 or fewer employees. Using the 2010 price of underground coal of $60.73 per short ton and total 2010 coal production in short tons, underground coal revenues are estimated to be approximately $224 million for mines employing fewer than 20 employees and $15.0 billion for mines employing 500 or fewer employees. The annual costs of the final rule for mines that have fewer than 20 employees is 0.86 percent ($1.9 million/$224 million) of annual revenues, and the annual costs of the final rule for mines that have 500 or fewer employees is 0.10 percent ($16.1 million/$15.2 billion) of annual revenues.

Using either MSHA's traditional definition of a small mine (one having fewer than 20 employees) or SBA's definition of a small mine (one having 500 or fewer employees), the yearly costs for underground coal mines to comply with the final rule will not exceed 1 percent of their estimated revenues. Accordingly, MSHA certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

This final rule contains changes that affect the burden in an existing paperwork package with OMB Control Number 1219-0088. The final rule also contains a new burden for information collection requirements, which is shown in Table 6. MSHA estimates that the final rule will result in approximately 15,478 burden hours with an associated cost of approximately $1.2 million annually. The change in the number of mines increased the burden hours and cost. However, the net effect per mine is a decrease from the proposed rule.

Many of the commenters were concerned that under the proposal, recordkeeping requirements would increase dramatically. One stated that the recordkeeping will require additional personnel on each shift, 7 days per week and, thus, add four people at an annual cost of $400,000 per mine with wages and benefits. MSHA estimated additional time for identifying, correcting, and recording violations of nine standards found during preshift, supplemental, on-shift, and weekly mine examinations. Out of the additional time for examining for violations, MSHA estimates that an average of 3 minutes (0.05 hr) will be for recording the violations found and the corrective actions taken. MSHA has determined that requiring examiners to look for violations of nine standards during required examinations and recording the violations found and corrective actions taken, will increase the burden on operators, but will not require additional examiners.

Final § 75.360 requires operators to record hazardous conditions and violations of standards found during the preshift examination and the corrective actions taken. MSHA estimates that it would take an examiner an average of 3 minutes (0.05 hr) out of the total additional time needed to perform the preshift examination to record the violations and any corrective actions taken. An examiner conducting a preshift examination earns a supervisory wage of $84.69 an hour (includes benefits). MSHA estimates that—

• Mines with 1-19 employees operate one shift per day, 200 days per year;

• Mines with 20-500 employees operate two shifts per day, 300 days per year; and

• Mines with 501+ employees operate three shifts per day, 350 days per year.

MSHA's estimates of underground coal operators' annual burden hours and burden hour costs for preshift examinations are presented below.

There are no other associated costs because the final rule adds to an existing system of recordkeeping.

Final § 75.363 requires operators to record any violations of mandatory health or safety standards found on supplemental and on-shift examinations and any corrective actions taken. The final preshift (§ 75.360) and weekly (§ 75.364) examinations have their own recordkeeping requirements. The final supplemental (§ 75.361) and on-shift (§ 75.362) standards contain new recordkeeping requirements if a violation of a mandatory health or safety standard is found. The recordkeeping for these final standards would be recorded under final § 75.363.

During FY 2005 through 2009, MSHA inspectors found an annual average of 22,062 violations of the 9 top cited standards MSHA believes are most likely to be identified on preshift, supplemental, on-shift, and weekly examinations (see Section IV). Because conditions resulting in these violations can occur and require corrective action multiple times during the year (e.g., insufficient rock dust), MSHA multiplied the 22,062 violations found by MSHA inspectors by a factor of 1.5 to arrive at an estimated 33,093 violations that could be found by mine examiners. MSHA assumes that half of these violations, 16,547 violations, would be identified on the preshift and weekly examinations and the other half would be identified on supplemental and on-shift examinations.

MSHA estimates that 80 percent of these violations (13,237 = 0.80 × 16,547) would be found on the on-shift examinations and 20 percent of these violations (3,309 = 0.80 × 16,547) would be found on the supplemental examinations. MSHA estimates that it would take 3 minutes (0.05 hrs.) to record any violations identified and the corrective actions taken. Supervisors earning $84.69 an hour perform on-shift exams and certified examiners earning $36.92 perform supplemental exams.

MSHA's estimates of underground coal operators' annual burden hours and related costs are presented below.

Final § 75.364 requires operators to conduct examinations every 7 days and record hazardous conditions and violations of standards found and corrective actions taken. MSHA estimates that it will take a certified examiner approximately 3 minutes (0.05 hr) out of the total time needed to conduct the examination to record the violations found and corrective actions taken. An examiner conducting these weekly examinations earns a non-supervisory wage of $36.92 an hour (includes benefits). MSHA also estimates that, on average, mines operate for 50 weeks per year.

MSHA's estimates of underground coal operators' annual burden hours and related costs for weekly examinations are presented below.

There are no other associated costs because the final rule adds to an existing system of recordkeeping.

The information collection package for this final rule was submitted to OMB for review under 44 U.S.C. 3504, paragraph (h) of the Paperwork Reduction Act of 1995, as amended. MSHA requested comment on its estimates for information collection requirements in the proposal and responded to these comments in the final rule. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information if the collection of information does not display a valid OMB Control Number. See 5 CFR 1320.5(a) and 1320.6.

The Department will, concurrent with publication of this rule, submit the information collections contained in this final rule for review under the PRA to the OMB, as part of a revision to Control Number 1219-0088. The Department will publish an additional Notice to announce OMB's action on the request and when the information collection requirements will take effect. The regulated community is not required to respond to any collection of information unless it displays a current, valid, OMB control number. MSHA displays the OMB control numbers for the information collection requirements in its regulations in 30 CFR part 3.

MSHA has reviewed the final rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this final rule does not include any federal mandate that may result in increased expenditures by State, local, or tribal governments; nor will it increase private sector expenditures by more than $100 million in any one year or significantly or uniquely affect small governments. Accordingly, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.) requires no further agency action or analysis.

This final rule does not have “federalism implications” because it 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.” Accordingly, under E.O. 13132, no further Agency action or analysis is required.

One commenter stated that they disagreed with MSHA's finding regarding E.O. 13132, that the proposed rule would not have `federalism implications' or a `substantial direct effect' on states. The commenter said that the rule would have real implications for states, with potentially substantial costs associated with training and certification. Historically, MSHA accepted state certifications for mine examiners. The final rule addresses hazardous conditions required under the existing rule and violations of health or safety standards. Since violations of the nine standards generally relate to hazardous conditions covered by the existing rule, MSHA believes that the final rule will have only a minimal effect on states. It is currently the responsibility of the mine operator to correct any violation of a health or safety standard. Based on Agency experience, MSHA does not anticipate that requiring examiners on preshift, supplemental, on-shift, and weekly examinations to look for and identify violations of the nine standards in the final rule will affect training and certification done by the states.

Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Agency action on family well-being. MSHA has determined that this final rule will have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. This final rule impacts only the underground coal mine industry. Accordingly, MSHA certifies that this final rule would not impact family well-being.

This final rule does not implement a policy with takings implications. Accordingly, under E.O. 12630, no further Agency action or analysis is required.

This final rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. Accordingly, this final rule will meet the applicable standards provided in section 3 of E.O. 12988, Civil Justice Reform.

This final rule will have no adverse impact on children. Accordingly, under E.O. 13045, no further Agency action or analysis is required.

This final rule does not have “tribal implications” because it will not “have substantial direct effects 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.” Accordingly, under E.O. 13175, no further Agency action or analysis is required.

Executive Order 13211 requires agencies to publish a statement of energy effects when a rule has a significant energy action that adversely affects energy supply, distribution or use. MSHA has reviewed this final rule for its energy effects because the final rule applies to the underground coal mining sector. Because this final rule will result in yearly costs of approximately $17.0 million to the underground coal mining industry, relative to annual revenues of $18.8 billion in 2010, MSHA has concluded that it is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, under this analysis, no further Agency action or analysis is required.

MSHA has reviewed the final rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. MSHA has determined and certified that the final rule does not have a significant economic impact on a substantial number of small entities.

For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977 as amended, chapter I of title 30, part 75 of the Code of Federal Regulations is amended as follows:

The U.S. Army Rock Island Arsenal requested a temporary deviation for the Rock Island Railroad and Highway Drawbridge, across the Upper Mississippi River, mile 482.9, at Rock Island, Illinois to remain in the closed-to-navigation position for a two-hour period from 8:30 p.m. to 10:30 p.m., June 2, 2012, while a walk is held between the cities of Davenport, IA and Rock Island, IL. The Rock Island Railroad and Highway Drawbridge currently operates in accordance with 33 CFR 117.5, which states the general requirement that drawbridges shall open promptly and fully for the passage of vessels when a request to open is given in accordance with the subpart.

There are no alternate routes for vessels transiting this section of the Upper Mississippi River.

The Rock Island Railroad and Highway Drawbridge, in the closed-to-navigation position, provides a vertical clearance of 23.8 feet above normal pool. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This temporary deviation has been coordinated with waterway users. No objections were received.

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

Regulatory Information

On December 8, 2011, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulation; Blackwater River, South Quay, VA in the Federal Register (76 FR 76634). We received no comments on the proposed rule. No public meeting was requested, and none was held.

Virginia Department of Transportation has requested a change in the operation regulation of the S189 Bridge across Blackwater River, mile 9.2, at South Quay VA. There has been no request for openings since the year 2000. The only industrial waterway user to request openings left the area in 2000. Since 2008 up to the present day, the average daily vehicular count is approximately 2,930. The Coast Guard will allow the above mentioned bridge to remain in the closed to navigation position in accordance with 33 CFR 117.39.

The vertical clearance of the Swing Bridge is 14 feet above mean high tide in the closed position and unlimited in the open position. The current operating schedule for the bridge is set out in 33 CFR 117.999. The current 24 hour advance notice is no longer necessary because of the lack of openings.

The Coast Guard will revise 33 CFR 117.999 for the S189 Bridge over Blackwater River, mile 9.2, at South Quay, VA. The current regulation states: The draw of the S189 bridge, mile 9.2 at South Quay, shall open on signal if at least 24 hours notice is given. The new regulation would allow the bridge to not open for the passage of vessels. The change of the operating regulation will reflect the current use of the waterway. Pursuant to the NPRM, there was a comment period of 60 days and no comments were received.

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. The change is expected to have minimal impact on mariners, because there have been no requests for openings for the past 11 years, and there is no anticipated change to vessel traffic.

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 action will not have a significant economic impact on a substantial number of small entities for the following reasons: There have been no vessel requests for openings for the past 11 years. Vessels that can safely transit under the bridge may do so at any time. Before the effective period, we will issue maritime advisories widely available to users of the river.

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it will 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 guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

Multnomah County has requested that the Broadway Bascule Bridge remain closed to vessel traffic to facilitate safe, uninterrupted roadway passage of participants of the Bridge to Brews event. The Bridge to Brews event is an annual 8-10K footrace held in Portland, OR. The race course passes over the Broadway Bridge. The Broadway Bridge crosses the Willamette River at mile 11.7 and provides 90 feet of vertical clearance above Columbia River Datum 0.0 while in the closed position. Vessels which do not require a bridge opening may continue to transit beneath the bridge during this closure period. Under normal conditions this bridge operates in accordance with 33 CFR 117.897 which allows for the bridge to remain closed between 7 a.m. and 9 a.m. and 4 p.m. and 6 p.m. Monday through Friday and also requires advance notification when a bridge opening is needed. This deviation period is from 8 a.m. on April 15, 2012 through 11:15 a.m. April 15, 2012. The deviation allows the bascule span of the Broadway Bridge across the Willamette River, mile 11.7, to remain in the closed position and need not open for maritime traffic from 8 a.m. through 11:15 a.m. on April 15, 2012. The bridge shall operate in accordance to 33 CFR 117.897 at all other times. Waterway usage on this stretch of the Willamette River includes vessels ranging from commercial tug and barge to small pleasure craft. Mariners will be notified and kept informed of the bridge's operational status via the Coast Guard Notice to Mariners publication and Broadcast Notice to Mariners as appropriate. The draw span will be required to open, if needed, for vessels engaged in emergency response operations during this closure period.

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

The California Department of Transportation has requested a temporary change to the operation of the Isleton Drawbridge, mile 18.7, over Sacramento River, at Isleton, CA. The drawbridge navigation span provides a vertical clearance of 15 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal from May 1 through October 31 from 6 a.m. to 10 p.m. and from November 1 through April 30 from 9 a.m. to 5 p.m. At all other times the draw shall open on signal if at least four hours notice is given to the drawtender at the Rio Vista bridge across the Sacramento River, mile 12.8, as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

Either leaf of the double bascule drawspan may be secured in the closed-to-navigation position from 7 a.m., April 20, 2012 to 6 p.m. on June 18, 2012, to allow Caltrans to conduct painting and maintenance on the bridge. The opposite leaf will continue to operate normally, providing unlimited vertical clearance and 83 feet horizontal clearance between leafs. A work platform will be installed below the secured leaf, reducing vertical clearance by 6 feet. This temporary deviation has been coordinated with waterway users. No objections to the proposed temporary deviation were raised.

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

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive notice of this stage of the Matlacha Bridge construction until February 6, 2012. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to construction operations to install the new bascule leaf on the Matlacha Bridge. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the public during the bridge construction.

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

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

The purpose of the rule is to protect life and property on navigable waters of the United States during the Matlacha Bridge construction.

From Monday, March 12, 2012 through Tuesday, April 10, 2012, Archer Western Contractors, Ltd., Inc. will be installing a new bascule leaf on the Matlacha Bridge in Matlacha, Florida. The bascule leaf installation will require a barge to be placed between the fender system at the Matlacha Bridge, thereby closing the Matlacha Pass channel to marine traffic. The construction poses a danger to mariners located in or transiting the area.

The safety zone encompasses certain waters of Matlacha Pass in the vicinity of the Matlacha Bridge in Matlacha, Florida. The safety zone will be in effect during the installation of the bascule leaf, which is scheduled to take place between March 12, 2012 and April 10, 2012. At this time the Coast Guard does not know the exact hours of construction. However, prior to each enforcement period, the Coast Guard will provide notice by publication in the local notice to mariners and via broadcast notice to mariners. On-scene notice will also be provided by the Coast Guard or local law enforcement.

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

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

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

The economic impact of this rule is not significant for the following reasons: (1) The safety zone will only be enforced for 12 hours per day for a total of 29 days; (2) vessel traffic in the area is expected to be minimal during the enforcement periods; (3) the barge placed in the main channel will be able to move with 12 hours advance notice; (4) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement periods; (5) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone during the enforcement periods if authorized by the Captain of the Port St. Petersburg or a designated representative; and (6) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Matlacha Pass encompassed within the safety zone between 7 a.m. and 7 p.m. from March 12, 2012 through April 10, 2012. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing a temporary safety zone that will be enforced 12 hours per day for a total of 29 days. 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:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0604 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 5, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0604, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.

• Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of September 7, 2011 (76 FR 55329) (FRL-8886-7), EPA issued a notice pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP 1E7893) by Cognis Corporation, c/o Lewis & Harrison LLC, 122 C St. NW., Suite 740, Washington, DC 20001. The petition requested that 40 CFR 180.910 and 180.930 be amended by modifying an exemption from the requirement of a tolerance for residues of 2-ethyl-1-hexanol (CAS Reg. No. 104-76-7) to increase the maximum use level from 2.5% to 20% in final pesticide formulations when used as an inert ingredient as a cosolvent, defoamer, solvent in pesticide formulations applied to agricultural growing crops or to raw agricultural commodities after harvest and direct application to animals. That notice referenced a summary of the petition prepared by Cognis Corporation, c/o Lewis & Harrison LLC, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has increased the maximum use limit for 2-ethyl-1-hexanol under 40 CFR 180.910 and 180.930 to 10% and not 20% as requested by the petitioner due to aggregate risk concern. This limitation is based on the Agency's risk assessment which can be found at http://www.regulations.gov in the document “Decision Document for Petition Number 1E7893:2-Ethylhexanol; Human Health Risk Asseessment and Ecological Effects Assessment for Proposed Exemption from Requirement of a Tolerance When Used as Inert Ingredients in Pesticide Formulations,” in docket ID number EPA-HQ-OPP-2011-0604.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

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

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for 2-ethyl-1-hexanol including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with 2-ethyl-1-hexanol follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by 2-ethyl-1-hexanol as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit. The available toxicity studies for 2-ethyl-1-hexanol are summarized in detail in the Decision Document for Petition Number 1E7893: “2-Ethylhexanol; Human Health Risk Assessment and Ecological Effects Assessment for Proposed Exemption from the Requirement of a Tolerance When Used as Inert Ingredients in Pesticide Formulations.”

The Agency has determined that 2-ethyl-1-hexanol is of low acute toxicity by the oral and dermal routes. Studies in rats and mice have LD50s ranging from 2,000 to 6,400 milligrams/kilogram (mg/kg) of body weight. 2-Ethyl-1-hexanol is moderately irritating to the skin and severely irritating to the eye. Eleven subacute and subchronic studies have been performed with 2-ethyl-1-hexanol.

All the studies show that repeated exposure to 2-ethyl-1-hexanol has low potential for toxicity. The major target organ for 2-ethyl-1-hexanol is the liver with peroxisome proliferation as the major hepatic endpoint. The lowest NOAEL was observed in rats at 100 mg/kg/day based on liver weights and liver peroxisomes at the LOAEL of 320 mg/kg/day. No neurotoxic effects, even at high doses, were observed in the subchronic or chronic studies, so there is no reason to assume 2-ethyl-1-hexanol has neurotoxic potential.

Numerous genotoxicity studies have been conducted with 2-ethyl-1-hexanol, including five Ames tests, an in vitro cell transformation assay, an 8-azaguanine resistance assay, a mouse micronucleus test, a mouse lymphoma assay, a Rec-assay, a CHO mutation assay, an unscheduled DNA synthesis assay, an in vivo dominant lethal assay and an in vivo chromosomal aberration assay. The results of all in vitro assays except the 8-azaguinine resistance assay were negative and all in vivo studies were negative as well. The genotoxicity data clearly indicate that 2-ethyl-1-hexanol is not mutagenic.

Carcinogenicity studies in both rats and mice were conducted. In the mouse study, male and female mice were gavaged with 2-ethyl-1-hexanol at doses of 0, 50, 200 or 750 mg/kg/day for 18 months. No substance-related changes were seen at 50 or 200 mg/kg/day. At 750 mg/kg/day, reduced body weight gain related to decreased food consumption and increased mortality was noted. Treatment-related hematological changes were seen, and slight but not statistically significant increases were noted in focal hyperplasia of the epithelium of the forestomach. No statistically significant increases in tumor incidence were noted in mice. In the rat study, male and female rats were gavaged five days/week for 24 months at 0, 50, 150 or 500 mg/kg/day. Dose-related reduced body weight gain was noted at 150 mg/kg/day and higher. Clinical findings included poor general condition, labored breathing, and piloerection. Increased mortality occurred in females at 500 mg/kg/day. No increase in tumor incidence was noted. Based on the results of the rat and mice studies and lack of mutagenicity concerns, it can be reasonably concluded that 2-ethyl-1-hexanol is not likely to be carcinogenic.

Developmental toxicity studies have been performed with 2-ethyl-1-hexanol; and a reproductive study has been performed using diethylhexyl adipate (DEHA) that readily metabolizes to 2-ethyl-1-hexanol in mammals. EPA concluded that none of the studies showed any developmental or reproductive toxicity associated with 2-ethyl-1-hexanol, even at high dose levels.

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

Several subchronic, chronic/carcinogenicity studies are available for 2-ethyl-1-hexanol. No endpoint of concern for acute exposure was identified in the available database. The NOAEL, from the carcinogenicity study in rat was 50 mg/kg/day based on dose-related reduced body weights at the LOAEL of 450 mg/kg/day. The chronic RfD is 0.5 mg/kg/day using a hundredfold uncertainty factor (10X intraspecies and 10X interspecies variation). The population adjusted dose is equal to chronic RfD (0.5 mg/kg/day) since the FQPA factor is reduced from 10X to 1X. This endpoint of concern was used for all exposure durations in order to be conservative in the risk assessment.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to 2-ethyl-1-hexanol EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from 2-ethyl-1-hexanol in food as follows: The I-Dietary Exposure Evaluation Model (DEEM) is a highly conservative model with the assumption that the residue level of the inert ingredient would be no higher than the highest tolerance for a given commodity.

Implicit in this assumption is that there would be similar rates of degradation between the active and inert ingredient (if any) and that the concentration of inert ingredient in the scenarios leading to these highest of tolerances would be no higher than the concentration of the active ingredient. The model assumes 100 percent crop treated (PCT) for all crops (every food eaten by a person each day has tolerance-level residues).

2. Dietary exposure from drinking water. For the purpose of the screening level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for 2-ethyl-1-hexanol, a conservative drinking water concentration value of 100 parts per billion (ppb) based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables).

There are no current residential uses known to the Agency and thus no residential exposures are expected. Therefore, a residential exposure assessment was not conducted.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found 2-ethyl-1-hexanol to share a common mechanism of toxicity with any other substances, and 2-ethyl-1-hexanol does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that 2-ethyl-1-hexanol does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

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

2. Prenatal and postnatal sensitivity. There are several developmental toxicity studies available in mice and rats by the gavage route. One developmental toxicity study in rats via inhalation and a dermal developmental toxicity study in mice are also available. In one developmental toxicity study in mice via oral route, no developmental toxicity was observed at the highest dose of 1,525 mg/kg/day. In a separate developmental toxicity study in mice via oral route, no developmental effects were observed at doses up to 135 mg/kg/day (the highest dose tested, HDT). In a rat developmental toxicity study via oral routes, the NOAEL for developmental and maternal toxicity was 800 mg/kg/day based on hydronephrosis and tail abnormalities seen at the LOAEL of 1,600 mg/kg/day above the limit dose of 1,000 mg/kg/day. No developmental toxicity was seen in rats (inhalation) and mice (dermal) at doses up to 850 mg/m3 and 2,520 mg/kg/day, respectively. The available data on developmental toxicity studies with 2-ethyl-1-hexanol clearly indicate no evidence of increased susceptibility for infants and children. No two generation reproduction study is available in the database for 2-ethyl-1-hexanol, however, no effects on sperm and other reproductive parameters were observed in rats at doses up to 1,080 mg/kg/day when fed on diets containing diethylhexyl adipate (DEHA). In mammals, DEHA is readily metabolized to 2-ethyl-1-hexanol. None of the studies showed any developmental or reproductive toxicity associated with 2-ethyl-1-hexanol, even at high dose levels.

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

i. The toxicity database for 2-ethyl-1-hexanol includes several subchronic, chronic/carcinogenicity studies, mutagenicity studies, metabolism studies, and developmental studies. No two generation reproduction study is available in the database for 2-ethylhexanol, however, no effects on sperm and other reproductive parameters were observed in rats at doses up to 1,080 mg/kg/day when fed on diets containing diethylhexyl adipate (DEHA). In mammals, DEHA is readily metabolized to 2-ethylhexanol.

ii. There is no indication that 2-ethyl-1-hexanol is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional uncertainty factors (UFs) to account for neurotoxicity. No neurotoxicity studies are available in the database, however, no clinical signs of neurotoxicity were observed in the available subchronic and chronic studies. Therefore, the developmental neurotoxicity study is not necessary at this time.

iii. No immunotoxicity study is available, however, there were no effects on the thymus or spleen indicated in the available database. Therefore, an immunotoxicity study is not required.

iv. There is no evidence that 2-ethyl-1-hexanol results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in the 2-generation reproduction study with a surrogate chemical.

v. There are no residual uncertainties identified in the exposure databases. The food and drinking water assessment is not likely to underestimate exposure to any subpopulation, including those comprised of infants and children. The food exposure assessments are considered to be highly conservative as they are based on the use of the highest tolerance level from the surrogate pesticides for every food and 100% crop treated is assumed for all crops. EPA also made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to 2-ethyl-1-hexanol in drinking water. These assessments will not underestimate the exposure and risks posed by 2-ethyl-1-hexanol.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, 2-ethyl-1-hexanol is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to 2-ethyl-1-hexanol from food and water will utilize 7.7% of the cPAD for U.S. population and 25% for children age 1 to 2 years, the population group receiving the greatest exposure. There are no residential uses for 2-ethyl-1-hexanol. Based on the explanation in this unit, regarding residential use patterns, chronic residential exposure to residues of 2-ethyl-1-hexanol is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). A short-term adverse effect was identified; however, 2-ethyl-1-hexanol is not currently used as an inert ingredient in pesticide products that are registered for any use patterns that would result in short-term residential exposure. Short-term risk is assessed based on short-term residential exposure plus chronic dietary exposure. Because there is no short-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess short-term risk), no further assessment of short-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating short-term risk for 2-ethyl-1-hexanol.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

An intermediate-term adverse effect was identified; however, 2-ethyl-1-hexanol is not currently used as an inert ingredient in pesticide products that are registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for 2-ethyl-1-hexanol.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies and lack of mutagenicity concerns, 2-ethyl-1-hexanol is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to 2-ethyl-1-hexanol residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of 2-ethyl-1-hexanol in or on any food commodities. EPA is establishing a limitation on the amount of 2-ethyl-1-hexanol that may be used in pesticide formulations. That limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. EPA will not register any pesticide for sale or distribution that contains greater than 10% of 2-ethyl-1-hexanol in food use pesticide formulations.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nation Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for 2-ethyl-1-hexanol.

Therefore, the exemptions from the requirement of a tolerance for 2-ethyl-1-hexanol (CAS Reg. No. 104-76-7) at 40 CFR 180.910 and 180.930 are amended to increase the maximum use level from 2.5% to 10% in final pesticide formulations.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

Background

On December 14, 2011, we published a direct final rule entitled “Seagoing Barges” in the Federal Register (76 FR 77712). That rule would have redefined “seagoing barge” in 46 CFR parts 90 and 91 and would have revised 46 CFR parts 2, 24, 30, 70, 90, 91, and 188 to exempt specified seagoing barges from inspection and certification to align Coast Guard regulations with the language of the applicable statutes.

In 1983, section 2101(32), Public Law 98-89, 97 Stat. 500 (46 U.S.C. 2101) redefined “seagoing barge” as a non self-propelled vessel of at least 100 gross tons making voyages beyond the Boundary Line. Coast Guard regulations at 46 CFR 91.01-10(c) do not reflect the language change and instead refer to seagoing barges as vessels “on the high seas or ocean.” The withdrawn rule would have changed the language in 46 CFR 91.01-10 from “on the high seas or ocean” to “beyond the Boundary Line” to reflect the language of Public Law 98-89.

In 1993, Congress exempted from inspection seagoing barges that are unmanned and (1) not carrying hazardous material as cargo, or (2) carrying a flammable or combustible liquid, including oil, in bulk. (See Coast Guard Authorization Act of 1993, Pub. L. 103-206, 107 Stat. 2419 (46 U.S.C. 3302(m).) Also in 1993, we stopped requiring the specified seagoing barges to be inspected in compliance with Public Law 103-206. However, we did not amend our regulations to reflect the exemption. That withdrawn rule would have changed the language concerning seagoing barges in 46 CFR 90.05-25, and 46 CFR 91.01-10, and in the vessel inspection tables in 46 CFR parts 2, 24, 30, 70, 90, and 188, to reflect the exemption created by Public Law 103-206.

We published the withdrawn rule as a direct final rule under 33 CFR 1.05-55 because we considered the rule to be noncontroversial and therefore did not expect any adverse comments. In the direct final rule, we notified the public of our intent to make the rule effective on April 12, 2012, unless an adverse comment or notice of intent to submit an adverse comment was received on or before February 13, 2012.

We received two submissions from the same commenter during the comment period, and we determined that both are adverse comments, as explained below. As such, we are withdrawing the direct final rule. We plan to consider the issues raised in the adverse comments in a notice of proposed rulemaking.

We received two comments in response to the direct final rule. In the first comment, the commenter stated that without a definition of the term “oil in bulk,” the rule would be ineffective. In the second comment, the commenter stated that without a definition of the term “manned,” the rule would be ineffective. In the direct final rule, we explained that a comment is considered adverse if the commenter explains why this rule or part of this rule would be inappropriate, including a challenge to its underlying premise or approach, or would be ineffective or unacceptable without a change. We have determined that both comments received are adverse comments.

In the first comment, the commenter expressed concern that, without a definition of “in bulk,” the rule does not make it clear whether a barge that carries flammable or combustible liquids, including oil, in bulk for use by the vessel and not as cargo, is exempt from inspection and certification. Furthermore, the commenter asked at what quantity of such flammable or combustible liquid carried in bulk is the barge no longer considered exempt under the rule. The commenter also expressed concern that without a definition of “in bulk,” barges that carry flammable or combustible liquid, including oil, in bulk as cargo would be subject to inspection regardless of how small the quantity.

In the second comment, the commenter requested a definition for the term “manned,” and stated that without such a definition, the rule would be ineffective. The commenter was concerned that there are times when barges that do not require manning to operate have personnel on board to prepare the barges for transfer and off-load, and that without a definition in the rule, it is not clear whether barges with personnel permissively on board require inspection or are exempt.

We issue this notice of withdrawal under the authority of 33 U.S.C. 494, 502, 525, 33 CFR 1.05-55, and Department of Homeland Security Delegation No. 0170.1.

Because we consider these comments to be adverse, we are withdrawing the direct final rule. We plan to seek comment on these concerns in a forthcoming notice of proposed rulemaking.

Background

The New England Fishery Management Council (Council) adopted Framework 23 on September 27, 2011, initially submitted it to NMFS on October 25, 2011, for review and approval, and submitted a revised final framework document on November 30, 2011. Framework 23 includes measures that require vessels fishing in the Atlantic Sea Scallop fishery to use a turtle deflector dredge (TDD), including where, when, and to which vessels this TDD requirement applies. It also revises the current accountability measures (AMs) related to the yellowtail flounder (YTF) annual catch limits (sub-ACLs) for the Georges Bank (GB) and Southern New England/Mid-Atlantic (SNE/MA) YTF stock areas. These modifications only alter the months when a closure applies and do not change the locations for these seasonal closure AMs. Framework 23 also changes how scallop landings are applied to the Northern Gulf of Maine Management (NGOM) total allowable catch (TAC) when harvested by federally NGOM-permitted vessels. Finally, Framework 23 implements procedural changes to when and where a vessel can declare a scallop trip through vessel monitoring systems (VMS).

The Council reviewed the Framework 23 proposed rule regulations as drafted by NMFS, which included regulations proposed by NMFS under the authority of section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and deemed them to be necessary and consistent with section 303(c) of the Magnuson-Stevens Act. The proposed rule for Framework 23 published in the Federal Register on January 3, 2012 (77 FR 52), with a 15-day public comment period that ended January 18, 2012. Three comments were received on the proposed measures.

The final Framework 23 management measures are described below. Details concerning the Council's development of these measures were presented in the preamble of the proposed rule and are not repeated here.

This action implements a requirement that all limited access (LA) vessels (regardless of permit category or dredge size), and limited access general category (LAGC) Individual Fishing Quota (IFQ) vessels that fish with a dredge with a width of 10.5 ft (3.2 m) or greater, use a TDD in the Mid-Atlantic (west of 71° W long.) from May through October.

The TDD is designed to reduce injury and mortality of sea turtles that come into contact with scallop dredges on the sea floor by deflecting sea turtles over the dredge frame and dredge bag. The TDD includes five modifications to the standard commercial dredge frame:

(1) The cutting bar must be located in front of the depressor plate.

(2) The angle between the front edge of the cutting bar and the top of the dredge frame must be less than or equal to 45 degrees.

(3) All bale bars must be removed, except the outer bale (single or double) bars and the center support beam, leaving an otherwise unobstructed space between the cutting bar and forward bale wheels, if present. The center support beam must be less than 6 in (15.24 cm) wide. For the purpose of flaring and safe handling of the dredge, a minor appendage not to exceed 12 in (30.5 cm) in length may be attached to the outer bale bar.

(4) Struts must be spaced no more than 12 in (30.5 cm) apart from each other.

(5) The TDD must include a straight extension (“bump out”) connecting the outer bale bars to the dredge frame. This “bump out” must exceed 12 in (30.5 cm) in length.

Each element of this dredge is based on direct field research that has been conducted over several years. The combination of these modifications is designed to reduce the likelihood of a sea turtle passing under the dredge frame when the gear is on the seafloor, which could result in the sea turtle being crushed or injured. Available information indicates that these modifications cumulatively benefit sea turtle conservation, while not compromising the structural integrity of the dredge design and scallop yield. These TDD components can be modified by future actions, if additional modifications are developed to further minimize impacts on sea turtles or improve the effectiveness of these measures.

This action requires that all LA vessels, regardless of permit category or dredge width, and all LAGC IFQ vessels that fish with dredge gear greater than or equal to 10.5 feet (3.2 m) in width in the applicable area and season, use a TDD. Because the bump out modification has not yet been fully tested on small dredges, Framework 23 exempts LA scallop vessels that use dredges with a width less than 10.5 ft (3.2 m) from that requirement of the TDD. Thus, LA vessels fishing with dredges less than 10.5 ft (3.2 m) in width only have to use a TDD with the first four modifications listed above. If an LA vessel fishes with two dredges at a time, both of which are less than 10.5 ft (3.2 m) in width, neither dredge is required to have the bump out extension, even though the combined width of both dredges is greater than 10.5 ft (3.2 m). The bump out exemption does not apply to LAGC vessels that use dredges less than 10.5 ft (3.2 m) wide because such vessels are exempted from the requirement to use a TDD entirely, due to concerns of the financial burden that building a new dredge would have on these small day boats, which may have lower IFQ allocations. If an LAGC vessel fishes with two dredges, both of which are less than 10.5 ft (3.2 m) wide, neither dredge is required to comply with the TDD requirements, even though the combined width of both dredges is greater than 10.5 ft (3.2 m).

Due to the time it will take manufacturers to develop TDDs for the scallop fishery, this measure will be effective 1 year after the effective date of Framework 23 (e.g., if Framework 23 is effective on March 15, 2012, the TDD regulations would be effective on March 15, 2013, and TDDs would be required to be used starting May 1, 2013). This delay also provides vessel operators and crew time to fish with the new dredge design before the TDD season begins, should they choose to do so.

This TDD requirement is an important measure to ensure compliance with the second reasonable and prudent measure (RPM#2) and accompanying terms and conditions (T/C) of the 2008 Biological Opinion (2008 Biological Opinion) on the Scallop FMP. RPM#2 states that “NMFS must continue to investigate and implement, as appropriate, gear modifications for scallop dredge and trawl gear to reduce the capture of sea turtles and/or the severity of the interactions that occur.” Along with effort restrictions in the Mid-Atlantic, which are required under the first RPM of the 2008 Biological Opinion, and previously implemented regulations requiring the use of chain mate (50 CFR 223.206(d)(11)), TDDs are expected to provide an additional conservation benefit to sea turtles by reducing the severity of any interactions that occur.

This action also revises the YTF seasonal closure AM schedules in both GB and SNE/MA such that the closures will occur during months with the highest YTF catch rates, rather than being in place for consecutive months beginning at the start of the fishing year (FY). These AM adjustments still only apply to LA vessels. Table 1 compares the current SNE/MA AM schedule with the new Framework 23 schedule. The major difference for SNE/MA is that the Framework 23 closure schedule occurs in the early spring and winter first, rather than starting with the spring and summer, as under the current AM for that stock area. AMs will occur in the same FY, with the winter closures occurring at the end of the FY.

Tables 2 and 3 compare the current GB AM schedules with the new Framework 23 schedules. The GB AM schedule is still complex because the extent of the closure period depends on whether or not Closed Area II Scallop Access Area (CAII) is open in the FY following a GB sub-ACL overage. In general, the major difference is that the current GB AM closures begin in the fall, when GB YTF catch rates are highest, followed by the winter months. The updated GB schedule will begin the closures at a time of year when scallop meat weights are lowest, thus impacts on the scallop resource and fishery should be lower compared to closing the area beginning in March through the spring and summer when scallop meat weights are larger. Similar to the Framework 23 SNE/MA schedule, all closures will occur in the same FY.

This action modifies the YTF AM regulations by allowing NMFS to re-examine the implementation of an AM once the FY has ended and all data are available. After the end of a given FY, if available end-of-year data results in different projected YTF catch levels than those that determined the initial announcement of any AM triggering (e.g., the extent of the estimated overage was higher or lower than originally estimated, or that an AM should or should not have been triggered), NMFS will adjust the AM determination to reflect the best information available. Currently the only sub-ACLs allocated to the scallop fishery are for SNE/MA YTF and GB YTF, but the Council's intent is for this flexibility to apply to any species' sub-ACL, should they be implemented in the scallop fishery in the future.

On or around January 15 of each year, the Regional Administrator is required to determine if the bycatch sub-ACLs are projected to be exceeded for that FY. If a sub-ACL is exceeded, a closure will be implemented in the following FY based on the overage schedule specified in this final rule. Several months after an FY is complete, a final estimate of YTF catch in the scallop fishery will be completed when all observer and scallop catch data are available. The timing of the final YTF year-end estimate is ultimately based on the availability of the observer data for a given FY. Ideally, observer data in open areas will be available 90 days after the completion of an observed trip. As such, the earliest month that the complete FY observer data would be available is likely June of the following FY. If the final estimate of YTF catch differs from the original estimate, this action gives the Regional Administrator the authority to revise the AM for the YTF sub-ACLs based on the final estimates. Due to the timing of the current AMs, there may not always be an opportunity to adjust AMs if the seasonal closure has already occurred during that FY, but the intent is to be more flexible to incorporate updated information when possible. This action does not give the Regional Administrator authority to impose AMs outside the scope of approved measures.

In November 2011, the Council adopted Framework Adjustment 47 (Framework 47) to the Northeast (NE) Multispecies FMP. Under Framework 47, the YTF AMs applicable to the scallop fishery would only be triggered if either the entire YTF ACL for a given stock area (SNE/MA or GB) is exceeded, or the scallop fishery exceeds its ACL by 50 percent or more. For example, if the entire YTF ACL for SNE/MA is exceeded in a given FY, and the scallop fishery exceeded its sub-ACL by 1.5 percent, an AM would be triggered for the following scallop FY based on the new Framework 23 schedule (i.e., a portion of SNE/MA would close in March and April). However, if the scallop fishery exceeded its sub-ACL by 1.5 percent but the total ACL for SNE/MA was not exceeded, no AM would be triggered in the scallop fishery for the following FY (i.e., an AM would only be triggered if the scallop FY exceeded its sub-ACL by 150 percent). The proposed rule for Framework 47 (77 FR 18179) published in the Federal Register on March 27, 2012, with the public comment period ending on April 11, 2012. NMFS anticipates that Framework 47, if approved, would be effective in May 2012.

To address some concerns regarding the management of the NGOM, this action allows federally permitted NGOM vessels to declare a state waters-only trip within the NGOM and not have those landings applied to the Federal NGOM TAC. If the vessel decides to fish exclusively in state waters within the NGOM area (i.e., MA, NH, and ME state waters), on a trip-by-trip basis, the scallop catch from state water only trips will not be applied against the Federal NGOM TAC. On a trip-by-trip basis, each NGOM vessel can decide which area it is going to fish in (i.e., Federal or state NGOM trip). A NGOM vessel may still fish in both state and Federal waters on a single trip, but that vessel will need to declare a Federal trip before leaving, and the entire catch from that trip will be applied to the Federal TAC, even if some of it was harvested in state waters.

Currently, NGOM and IFQ vessels that declare NGOM trips must have all landings applied to the Federal TAC, regardless of whether or not they were fishing in state or Federal waters of the NGOM. Although this action makes adjustments for NGOM-permitted vessels, the Council did not include a similar provision for IFQ vessels that fish in the NGOM. As a result, IFQ vessels will continue to have all of their landings applied to the NGOM TAC, as well as their IFQ allocations, when fishing in Federal or state waters within the NGOM.

Once the Federal TAC is closed, all federally permitted scallop vessels (i.e., LA, IFQ, and NGOM) are prohibited from fishing in any part of the NGOM until the next FY, unless they permanently relinquish their Federal NGOM permits and fish exclusively in state waters. This action does not change this provision for any scallop vessel, including NGOM vessels. NGOM vessels cannot declare state-only NGOM trips after the effective date of the Federal NGOM closure.

To date, the annual NGOM TAC of 70,000 lb (31.75 mt) has not been fully harvested in any FY, and most NGOM landings come from vessels fishing in state waters. Framework 23 does not change the NGOM hard TAC of 70,000 lb (31.75 mt). The Council will reevaluate the NGOM TAC in the next framework adjustment that will set the specifications for FYs 2013 and 2014.

Although this action applies to all NGOM permitted vessels, the ability for such vessels to fish in state waters within the NGOM (i.e., ME, NH, MA state waters) depends on whether or not such vessels have the necessary state permits to do so. In addition, NGOM permit holders still have to abide by the more restrictive possession limit of either their state or Federal NGOM scallop permit. This action does not exempt vessels from their Federal possession limit when fishing in state waters of the NGOM. To be exempt from Federal scallop possession limits, a state would have to apply for such exemption through the scallop state waters exemption program.

This action implements a measure that changes the current VMS trip declaration requirement for scallop vessels only, allowing them to declare a scallop trip anywhere shoreward of the VMS Demarcation Line, rather than from a designated port. Under current regulations, vessels that are involved in VMS fisheries (e.g., vessels with scallop, monkfish, multispecies, surfclam/quahog, and herring permits) must make their VMS trip declarations from inside a port. This action adjusts this process by allowing scallop vessels the authority to declare their scallop trips outside of a designated port, prior to crossing the VMS Demarcation Line and fishing, but does not change the trip declaration requirements for any other fishery. The Council's rationale for this alternative is to improve safety by eliminating the requirement that sometimes results in scallop vessels steaming into unfamiliar ports to declare their scallop trips before being able to fish. The Council may choose to address this issue in other VMS fisheries in future actions for those FMPs, and NMFS recommends that the Council discuss this further for other FMPs in order to be consistent, where possible, when addressing safety issues across all fisheries requiring VMS.

The Council has implemented this action for LA, LAGC IFQ, and LAGC NGOM vessels, although many of these scallop-permitted vessels will likely continue to declare from port, regardless of the option to do otherwise. The only vessels that will likely take advantage of this increased flexibility in trip declarations are the LA vessels declaring scallop DAS trips for fishing grounds that are far from their home port. These trips are what most commonly require a vessel to go into an unfamiliar port to declare into the DAS program because DAS begin to accrue once a vessel crosses to the seaward side of the VMS Demarcation Line and it is not possible, safe, or practicable to remain inside the VMS Demarcation Line throughout the steam to the fishing grounds. Because the current estimate of landings-per-unit-effort (LPUE) is calculated using DAS charged, this action does not change how LPUE is estimated, and increased catch is not expected.

This action includes several revisions to the regulatory text to address text that is duplicative and unnecessary, outdated, unclear, or otherwise could be improved through revision. For example, there are terms and cross references in the current regulations that are now inaccurate due to the regulatory adjustments made through Amendment 15 rulemaking (i.e., references to “TAC” in some cases should now refer to “annual catch limits (ACLs)”). NMFS revises the regulations to clarify the terminology intended by Amendment 15 to the FMP (76 FR 43746, July 21, 2011), and to provide more ease in locating these regulations by updating cross references.

This action also clarifies the intent of certain regulations. For example, the VMS regulations are clarified in § 648.10 to more clearly indicate the reporting requirements for various aspects of the scallop fishery (e.g., pre-landing notification requirements and state water exemption trip declaration requirements), to reflect the instructions currently available through on-board VMS units. Additionally, there are currently prohibitions in § 648.14 that imply that NGOM and incidental scallop vessels may retain more scallops than their allowable possession limit if they are assigned industry-funded observers during scallop trips. This text is unnecessary and confusing, because NGOM and incidental scallop vessels are not part of the scallop industry-funded observer program, and therefore would not be assigned such observers. As such, NMFS removes these references from the regulations. NMFS also clarifies how LAGC vessels are charged fees by observer providers in § 648.14, since such an explanation exists for LA vessels. A restriction on transferring IFQ in § 648.53(h)(5)(iii) is also clarified to allow vessels to complete multiple IFQ transfers during the course of a FY, as long as the transfers are for a portion of the IFQ and do not exceed the total yearly allocation. NMFS received some applications for permanent transfers of 100 percent of a vessel's IFQ in the same FY that IFQ was already leased from the same vessel. While this activity remains prohibited because transfers of allocation percentage is effectively a transfer of pounds, the restriction was not intended to prevent someone from completing multiple transfers of portions of their IFQ. As a result, the regulations are clarified to indicate that such multiple IFQ transfers are possible during a single FY.

NMFS also removes outdated text regarding LAGC quarterly TACs, which ceased to exist after the IFQ program was implemented in FY 2010, and references to the CAII rotational management schedule, which was intended to be removed in the rulemaking for Framework 22, along with the schedules for the other GB access areas. NMFS makes these changes consistent with section 305(d) of the Magnuson-Stevens Act.

NMFS also changes, pursuant to its authority under section 305(d) of the Magnuson-Stevens Act, the coordinates of the Closed Area I (CAI) access area and the CAI North and South essential fish habitat (EFH) areas. These coordinates were initially developed through Framework 16 to the FMP (69 FR 63460, November 2, 2004) and were implemented through Amendment 15 for FY 2011. During the course of FY 2011, vessels fishing in the CAI access area discovered that the new coordinates for the access area created a western boundary that is 1/4 of a mile (0.4 km) to the east of the CAI western boundary, described in § 648.81(a)(1) as the line extending between the points CI1 (41°30′ N lat.; 69°23′ W long.) and CI2 (40°45′ N lat.; 68°45′ W long.). However, the access area was designed to cover the whole middle portion of CAI and extend out to the CAI western boundary. In reviewing the coordinates, NMFS found that the western coordinates for the CAI access area were established using imprecise matching of coordinates to the CAI western boundary line. NMFS updates these coordinates in the regulations to extend the western boundary of CAI. To avoid any confusion on intent, in the case that various mapping software used by the industry or NOAA's Office of Law Enforcement provide slightly different results, NMFS also clarifies that the western boundary of the CAI access area is the same as the western boundary of CAI that lies between the two western-most coordinates of the CAI access area. Since these two coordinates also are included in the coordinates of the CAI North and CAI South EFH closed areas, NMFS changes those EFH area coordinates as well.

Finally, although this does not affect the current regulations, NMFS clarifies an error in table 3 of the final rule to Framework 22 (76 FR 43774; July 21, 2011). The scallop sub-ACL values of YTF in GB and SNE/MA were mistakenly reversed in this table and should have stated that the FY 2011 sub-ACLs in GB and SNE/MA are 200.8 mt and 82 mt, respectively, and the FY 2012 sub-ACLs in GB and SNE/MA are 307.5 mt and 127 mt, respectively. The regulations already indicate the correct values for these FYs, so this action makes no regulatory changes due to this error.

NMFS received three comment letters in response to the proposed rule from: A representative from Nordic Fisheries, a family-owned company that runs out of New Bedford, MA; the Fisheries Survival Fund (FSF), writing on behalf of full-time limited access scallop fleet members; and Oceana, a non-profit organization focused on ocean-related environmental issues. Six relevant issues relating to the proposed Framework 23 measures were raised; responses are provided below. NMFS may only approve, disapprove, or partially approve measures in Framework 23, and cannot substantively amend, add, or delete measures beyond what is necessary under section 305(d) of the MSA to discharge its responsibility to carry out such measures.

Comment 1: A representative of Nordic Fisheries generally supports the proposed measures in Framework 23, but commented that the final rule should mention that the TDD requirement meets RPM#2 and associated T/C of the 2008 Biological Opinion as an appropriate gear modification for a scallop dredge to reduce the capture of sea turtles.

Response 1: Based on its Endangered Species Act Section 7 consultation on the proposed Framework 23 measures, NMFS agrees that the TDD measures support the RPM#2 and T/C#2 of the 2008 Biological Opinion and has stated this in the preamble to this final rule.

Comment 2: FSF commented in support of the proposed measures, and expressed their satisfaction with industry, Council, and NMFS coordination on regulatory language describing the TDD requirement. However, FSF continue to note their opinion that the TDD requirement should remove the need for “area closures and other fishery restrictions implemented as RPMs for the scallop fishery.”

Response 2: The RPMs and implementing T/Cs included in a Biological Opinion are non-discretionary actions that must be implemented. The 2008 Biological Opinion included a number of RPMs to minimize incidental take of sea turtles, including RPMs that are both gear-based and effort-based. NMFS assumes that FSF's comment regarding “area closures and other fishery restrictions” refers to the effort-based RPM, RPM#1, which requires that NMFS limit the amount of allocated scallop fishing effort that can be used in the Mid-Atlantic during the time of year when sea turtle distribution overlaps with scallop fishing activity. The gear-based RPM (RPM#2) requires that NMFS continue to investigate and implement, as appropriate, scallop gear modifications to reduce the capture of sea turtles and/or the severity of the interactions that occur. These two RPMs are distinct from one another: The TDD meets the requirements of gear-based RPM#2, but that does not change the fact that RPM#1 must still be implemented. The current RPMs will be revisited when formal Section 7 consultation on the Scallop FMP is reinitiated and a new Biological Opinion is prepared, at which time all changes in the operation of the fishery that have occurred since the previous consultation in 2008 will be examined.

Comment 3: FSF also expressed concern that the yellowtail flounder AMs should not be implemented the subsequent year of an overage, but rather should be implemented in Year 3 (i.e., if the overage occurs in 2011, the accountability measure should be implemented in 2013). FSF noted that if the estimation of yellowtail flounder bycatch is completed before the end of the fishing year, it is unlikely that all of the data will be accounted for in the mid-year projection. Since the scallop fleet is more active in the beginning of the fishing year, FSF commented that the bycatch rate is not likely to be accurate and will have to be adjusted mid-year, which could potentially lead to adverse consequences to the scallop fleet.

Response 3: NMFS recognizes that the subsequent-year AMs are a concern to the industry, and is generally supportive of the Council considering modifications to the year the YTF AM in the scallop fishery would be implemented. However, as the preamble to the proposed rule for this action states, the measures in Framework 23 regarding YTF AMs do not give the Regional Administrator the authority to impose AMs outside the scope of the Council's approved measures. Neither Amendment 15 nor Framework 23 adopted measures to include Year 3 YTF AMs in the scallop fishery. However, the Council recently included such a measure to be considered in Framework Adjustment 24 (Framework 24) to the Scallop FMP, which is in the early stages of development.

Comment 4: FSF also discussed the need to revisit imposing YTF AMs on the LAGC fleet.

Response 4: NMFS agrees and continues to work with the Council on upcoming actions to address the LAGC fleet with regard to YTF AMs in the scallop fishery. The Council intends to address this issue in Framework 24.

Comment 5: Oceana commented in general support of Framework 23 measures, but specifically recommended changes to the proposed TDD measures. Oceana believes that the TDD should be implemented in the summer of 2012 and that the delay to 2013 is unnecessary and unsupported. Oceana also commented that the TDD should be required for a longer timeframe and should apply to all scallop vessels, but did not offer any argument to why the proposed measures are not sufficient.

Response 5: When implementing gear modifications such as TDD, NMFS must take into account the amount of time it will take for the industry to come into compliance with the new requirement. The scallop industry stated during development of Framework 23 measures that gear manufacturers would not be able to make enough dredges in time for everyone to come into compliance during the 2012 season. It is therefore not reasonable to require the gear until 2013. The Council considered an alternative that would have required all scallop vessels to adhere to the TDD requirement, but ultimately did not adopt that measure due to concerns that requiring TDDs on smaller LAGC vessels may not be economically feasible. Although sea turtle interactions in the Mid-Atlantic scallop fishery may occur in November when TDDs are not required, the adopted timeframe of May through October is still expected to have positive impacts on sea turtles. This time period includes all the months when observed takes have occurred in the scallop dredge fishery (June through October), and also includes May to account for the fact that turtles are expected to be in that area based upon best available data. In addition, although the TDD requirement is for vessels to use this gear for 6 months, it is likely that many vessels will choose to use this gear for longer time periods, perhaps even year-round (i.e., If they fish in the Mid-Atlantic primarily and do not want to bother switching back to the standard commercial dredge after the TDD timeframe). Therefore, the timeframe is reasonably expected to have the intended benefit for sea turtles without unduly restricting scallop vessels, and is consistent with the 2008 Biological Opinion.

Comment 6: Oceana also commented that NMFS should analyze annually the effectiveness of the TDD and promote future research to monitor its impacts on the fishery and sea turtle interactions. In addition, Oceana requested that Framework 23 implement a requirement for the Limited Access bottom trawl fleet to use Turtle Excluder Devices (TED). Independent of Framework 23, NMFS is considering measures to address sea turtle takes in the Mid-Atlantic trawl fisheries.

Response 6: Analyzing the TDDs effectiveness is a requirement of the 2008 Biological Opinion. As such, we intend on continuing to evaluate the effectiveness of gear modifications used in the scallop fishery and other measures designed to protect sea turtles, as needed. Oceana's request to implement a TED requirement for the LA bottom trawl fleet was not proposed by Framework 23 and, therefore, is beyond the scope and purpose of this action.

In § 648.14(i)(2)(ii)(B)(3) and § 648.51(b)(5)(ii), the TDD regulations were clarified to indicate that the TDD will not be required until May 1, 2013.

The Assistant Administrator for Fisheries, NOAA, has determined that this rule is consistent with the national standards and other provisions of the MSA and other applicable laws.

The Office of Management and Budget has determined that this rule is not significant according to Executive Order 12866.

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of Framework 23 in this final rule. The FRFA consists of and incorporates the IRFA, the relevant analyses and summaries thereof prepared for Framework 23, and the following discussion. This FRFA describes the economic impact that this final rule, along with non-adopted alternatives, will have on small entities. A copy of the IRFA, the RIR, and the EA are available upon request (see ADDRESSES).

This action implements four specific management measures applicable to the scallop fishery for FY 2012 and beyond. A description of the action, why it is being considered, and the legal basis for this action are contained in Framework 23 and in the preambles of the proposed and final rules, and are not repeated here.

No public comments were received in response to the IRFA summary in the proposed rule or the economic impacts of these measures more generally on small businesses. Summaries of the public comments and NMFS' responses are provided in the “Comments and Responses” section of this final rule.

For the purposes of the RFA, the Small Business Administration (SBA) defines a small business entity in any fish-harvesting or hatchery business as a firm that is independently owned and operated and not dominant in its field of operation (including its affiliates), with receipts of up to $4 million annually. All of the vessels in the Atlantic sea scallop fishery are considered small business entities because all of them grossed less than $3 million according to the dealer's data for FYs 1994 to 2010. In FY 2010, total average revenue per full-time scallop vessel was just over $1.2 million, and total average scallop revenue per LAGC vessel was just under $120,000. The IRFA for this and prior Scallop FMP actions do not consider individual entity ownership of multiple vessels. More information about common ownership is being gathered, but the effects of common ownership relative to small versus large entities under the RFA is still unclear and will be addressed in future analyses.

The Office of Advocacy at the Small Business Association (SBA) suggests two criteria to consider in determining the significance of regulatory impacts; namely, disproportionality and profitability. The disproportionality criterion compares the effects of the regulatory action on small versus large entities (using the SBA-approved size definition of “small entity”), not the difference between segments of small entities. Because Framework 23 estimates that no individual vessel grosses more than $3 million in any FY from 1994 through 2010, all permit holders in the sea scallop fishery were considered small business entities for the purpose of this analysis. Therefore, it is not necessary to perform the disproportionality assessment to compare the effects of the regulatory actions on small versus large entities. A summary of the economic impacts relative to the profitability criterion is provided below.

The measures contained in this final rule affect vessels with LA and LAGC scallop permits. The Framework 23 document from the Council provides extensive information on the number and size of vessels and small businesses that would be affected by the proposed regulations, by port and state. There were 313 vessels that obtained full-time LA permits in 2010, including 250 dredge, 52 small-dredge, and 11 scallop trawl permits. In the same year, there were also 34 part-time (i.e., vessels that receive annual scallop allocations that are 40 percent of what is allocated to full-time vessels, based on the permit eligibility criteria established through Amendment 4 to the Scallop FMP) LA permits in the sea scallop fishery. No vessels were issued occasional scallop permits (i.e., vessels that receive annual scallop allocations that are 8.33 percent of what is allocated to full-time vessels, based on the permit eligibility criteria established through Amendment 4 to the Scallop FMP). In FY 2010, the first year of the LAGC IFQ program, 333 active IFQ (including IFQ permits issued to vessels with a LA scallop permit), 122 NGOM, and 285 incidental catch permits were issued. Since all scallop permits are limited access, vessel owners only cancel permits if they decide to stop fishing for scallops on the permitted vessel permanently. This is likely to be infrequent due to the value of retaining the permit. As such, the number of scallop permits could decline over time, but the decline would likely be less than 10 permits per year.

This action contains no new collection-of-information, reporting, or recordkeeping requirements. It does not duplicate, overlap, or conflict with any other Federal law.

A summary of the economic impacts of adopted and alternative measures is provided below. A detailed analysis of the economic impacts can be found in Section 5.4 of the Framework 23 document (see ADDRESSES). All economic values are presented in terms of 2010 dollars.

In summary, in the short-term, the aggregate economic impact of this action on small businesses could range from a low negative to low positive, depending on the extent that positive impacts of the measures outweigh the costs of TDD requirement. These measures are not expected to have significant impacts on the viability of the vessels, especially in a highly profitable industry like the scallop fishery. Over the long-term, Framework 23 is expected to have positive economic impacts for the participants of the scallop fishery and related businesses. This action is not expected to have a considerable adverse impact on the net revenues and profits of the majority of the scallop vessels in the short and the medium term.

The following describes all of the alternatives considered by the Council.

This action implements a requirement for some scallop vessels to use a TDD from May 1 through October 31 in waters west of 71° W long. This requirement is applicable to all LA vessels (regardless of permit category or dredge size) and to those LAGC vessels that fish with a dredge(s) that has a width of 10.5 ft (3.2 m) or greater. The Council estimates that the cost of a new dredge plus the cost of freight would be about $5,000 for a standard dredge, and $2,500 to $3,000 for smaller dredges. The cost of buying a dredge and the freight cost will be a very small proportion (1 to 2 percent) of the average scallop revenues per LA vessel, even when the maximum estimate of costs is used. For an average LAGC vessel that uses only one dredge, the cost could be small, as well, amounting to about 2 percent of scallop revenue. Alternatively, for some vessels that use two dredges, the cost of buying and installing the dredges could be higher. Some of these vessels could choose to fish during times and in areas for which a TDD is not required.

The Council considered two other alternatives regarding which vessels would be required to use a TDD: One would have required the TDD for all LA vessels and no LAGC vessels, and thus would not have any adverse impacts on the LAGC IFQ vessels. The other non-selected alternative would have required the use of TDD for all vessels, including all LA and LAGC IFQ vessels, and would have had negative impacts on some LAGC IFQ vessels that use smaller dredges. There are some short-term costs associated with buying and installing TDDs under all alternatives, but these costs are not large and are not expected to have adverse impacts on the financial viability of small business entities. Indirect positive economic benefits over the medium to long term are expected to outweigh these costs under the adopted measure, particularly because it exempts LAGC vessels that use small dredges.

The option to have the TDD be required west of 71° W long. covers the majority of areas the scallop fishery and expected turtle interactions in the Mid-Atlantic overlap and excludes GB, where interactions with turtles are rare. This adopted measure minimizes the economic impacts for scallop vessels that fish solely in GB east of 71° W long. and those that fish in the Gulf of Maine. The adopted measure exempts LAGC vessels with dredges less than 10.5 ft (3.2 m) in width from TDD requirement, mitigating some of these negative impacts on the smaller boats fishing in those areas. The only other location option related to the TDD requirement was the area used to set effort limitations in Framework 22, which is the greatest area of overlap in the distribution of scallop fishing gear and sea turtles, with the exception of waters due south of Rhode Island. Thus, the adopted location option excludes those areas that LAGC vessels are active, and minimizes the negative economic impacts of TDD requirement on those vessels. Exempting LAGC vessels that use a dredge less than 10.5 ft (3.2 m) wide mitigates the impacts of the adopted boundary option and minimizes the differences between the impacts of the two location options considered.

Based on research indicating that using a TDD is not expected to have negative impacts on scallop landings, the season for the TDD requirement will probably have marginal economic impacts on the fishery overall. LA vessels are unlikely to change dredges during the year, once they are required to operate with a TDD during a part of the year. Therefore, the relative difference between the adopted season option (May 1 through October 31) and other non-selected options (i.e., May 1 through November 1, or June 1 through October 31) is likely to have only negligible impacts on these vessels. The difference between the season options could impact LAGC IFQ vessels relatively more than the LA vessels, but exempting LAGC IFQ vessels that use dredges less than 10.5 ft (3.2 m) wide prevents the adopted measure from negatively affecting smaller vessels. The increase in costs could also be minimized to some degree by leasing quota to LAGC IFQ vessels that fish in other areas. The shortest season considered by the Council (June through October) would have had the least impacts, and the longest considered season option (May through November) would have had the largest impact on vessels. The adopted season option maximizes the benefits of reducing the impacts on turtles, while not impacting a large proportion of scallop landings.

The adopted implementation date of the TDD requirements, 1 year after Framework 23 is implemented (i.e., May 2013, if Framework 23 is implemented in March 2012), allows manufacturers enough time to build dredges and gives vessels time to fish with the new dredge before the TDD requirement begins. A shorter period for implementation, such as the non-selected options for 90 days and 180 days after Framework 23's implementation, would not be feasible because so many dredges need to be built and it may not be possible to have all dredges manufactured in time. Overall, there are no other alternatives that would generate higher economic benefits for the participants of the scallop fishery.

This action revises the YTF seasonal closure AM schedules in both GB and SNE/MA such that the closures will be during months with the highest YTF catch rates when an overage occurs, rather than beginning at the start of the FY and running for consecutive months under No Action. Overall, these modifications are not expected to have large impacts on scallop vessels, given that only a small percentage of LA scallop landings took place in those areas. Because the revised closure schedules include the winter months, they will shift effort to seasons when the meat weights are larger, benefiting the scallop resource and increasing landings and overall economic benefits for the scallop vessels in the medium to long term. There are no other alternatives that would generate higher economic benefits for the participants of the scallop fishery.

The action to re-evaluate the AM determination mid-year, thus allowing for more flexibility in determining the appropriate AM seasonal closure length, is positive for LA scallop vessels compared to No Action. Although adjusting the FY to which the AMs would apply could result in higher benefits to the scallop fishery (e.g., if YTF AMs were triggered the year after the overage occurred), these measures were not considered by the Council and can be re-examined in a future framework action. Thus, given the two alternatives considered by the Council, the selected action generates the higher economic benefits for the participants of the scallop fishery.

This action allows all vessels with a Federal NGOM permit to fish exclusively in state waters, on a trip-by-trip basis, without the scallop catch from exclusive state water trips counted against the Federal NGOM TAC. This change is not expected to have any significant impacts under the current resource conditions on landings and revenues from this area. However, if the scallop resource abundance and landings within the State of Maine's waters increase in the future, this action could prevent a reduction in landings from federally permitted NGOM vessels fishing in the NGOM. This action could potentially have positive economic impacts on the vessels that fish both in the state and Federal waters. In addition, this action will keep the Federal NGOM hard-TAC at 70,000 lb (31.74 mt), which will have a positive economic impact on the participants of the NGOM scallop fishery. The only other TAC alternative would have lowered the Federal TAC to 31,000 lb (14.06 mt) to prevent excess fishing in the NGOM above potentially sustainable levels. Although the selected TAC alternative, if continued over the long-term, could result in reduced landings and revenues for the NGOM fishery if effort in Federal waters increases substantially, given the present lack of effort in the Federal portion of the NGOM, it is unlikely that keeping the TAC at this level will cause near-term problems. In addition, the Council will re-evaluate the NGOM TAC in the next framework adjustment that will set the specifications for FYs 2013 and 2014. Thus, there are no alternatives that would generate higher economic benefits for the participants of the scallop fishery.

This action allows a vessel to declare into the scallop fishery shoreward of the VMS Demarcation Line rather than from a designated port, enabling the vessel to reduce steaming time to scallop fishing grounds and decease its fuel and oil costs. Therefore, this modification will have positive economic impacts on scallop vessels and small business entities. The only other alternative considered by the Council was No Action and, as such, there are no alternatives that would generate higher economic benefits for the participants of the scallop fishery.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency will publish one or more guides to assist small entities in complying with the rule, and will designate such publications as “small entity compliance guides.” The agency will explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as a small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Northeast Regional Office, and the guide (i.e., permit holder letter) will be sent to all holders of permits for the scallop fishery and available online. The guide and this final rule will be available upon request.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: