Background

The regulations in 9 CFR part 92, “Importation of Animals and Animal Products; Procedures for Requesting Recognition of Regions” (referred to below as the regulations), set forth the process by which a foreign government may request recognition of the animal health status of a region.

Section 92.2 of the regulations requires that such requests be accompanied by information regarding the region that will enable the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture to evaluate the request.

On December 28, 2011, we published in the Federal Register (76 FR 81404-81408, Docket No. APHIS-2007-0158) a proposal  1 to amend the regulations by consolidating the 11 factors listed in § 92.2(b) that APHIS considers when evaluating the animal health status of a foreign region into 8 factors. We also proposed to establish criteria for recognizing a region as historically free of a specific disease. Our intent was to make clearer the types of information APHIS needs from a requesting region to conduct an evaluation. Additionally, although our regulations focus on requests from foreign regions, we noted that APHIS could initiate an evaluation of the disease status of a foreign region and, if we did, would conduct the evaluation using these same factors. We also proposed to remove a statement in § 92.2(d) that supporting information submitted with country requests will be made available to the public prior to initiation of rulemaking. We proposed to replace it with a statement that a list of regions that have requested recognition of their animal health status will be available to the public, and to leave in place a statement in § 92.2(f) that when APHIS makes its evaluation available for public comment, the public will have access to the information upon which APHIS based its evaluation, as well as the evaluation itself.

We solicited comments concerning our proposal for 60 days ending February 27, 2012. We received 12 comments (including two from the same person) by that date. They were from an organization representing pork producers, an organization representing cattle farmers and ranchers, an organization representing U.S. consumers, a wildlife conservation society, a State board of animal health, foreign governments, and individuals.

Six commenters supported the proposed changes.

Three commenters objected to the proposed rule. Two of the three said that they oppose the concept of regionalization for animal health status. Two also said they were concerned about APHIS' ability to predict outbreaks or detect disease threats under the current 11 factors and oppose finalizing a rule predicated on those factors. They cited several instances where regions APHIS had recognized as free of a disease had subsequently experienced an outbreak of that disease. One commenter also said that APHIS should not adopt international criteria for evaluating a region as historically free of a disease until we have conducted a scientific study to determine whether such recommendations are, in fact, capable of adequately assessing whether a country is historically free of a disease.

We are making no changes to the proposed rule in response to these comments. Regionalization is an important principle of the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures (WTO-SPS Agreement). Regionalization is based on recognition that pest and disease conditions may vary across a country as a result of ecological, environmental, and epidemiological factors, and on the premise that these differences should be taken into account in developing science-based regulatory measures. The United States has successfully applied the concept for decades in domestic disease control and eradication programs, and regionalization of the United States for bluetongue and other diseases has facilitated exports.

Our evaluations of regions for animal health closely consider a broad range of factors widely accepted by the international community for assessing the disease risks associated with a region. As discussed above, we provide an opportunity for the public to view and comment on our evaluations and the information upon which they are based prior to making a final determination. Finding that a region is free of a disease based on such an evaluation does not guarantee, however, that the region will always remain free of that disease. Our evaluations enable us to determine whether a disease is present in a region at a given time, ensure that the region has safeguards in place to protect against introduction of the disease, and ensure that the region is capable of detecting and containing the disease should it be introduced despite these measures.

Two commenters did not speak for or against the specific changes, but raised other issues, as follows.

One expressed concern that the reason for the changes was to expedite the evaluations for animal health status. The commenter stated that this should not be done at the expense of preventing foreign animal disease introductions into the United States.

We agree and point out that we are not changing the way we conduct evaluations. Our goal is to expedite the process of a region supplying us with the necessary information to conduct an evaluation.

One commenter expressed concern that APHIS emphasizes geographic, or zonal, freedom from disease over other approaches to trade in animal products that effectively mitigate disease risks. He mentioned compartmentalization and commodity-based trade as two alternatives. As examples of the latter, he cited the international standards for trade in fresh beef from regions that vaccinate for foot-and-mouth disease and the international standards for trade in milk and deboned beef from regions where the risk of bovine spongiform encephalopathy is neither negligible nor controlled. He stated that eradication of livestock diseases may not always be realistic or feasible, especially in places like Africa, where the means for achieving zone freedom (fences, for example) can conflict with wildlife preservation efforts (e.g., ensuring wildlife have space and freedom to roam).

We are making no changes to the proposed rule in response to this comment. While this rulemaking addresses factors we consider when assessing the disease status of a geographic area, APHIS' regulations also include commodity-based requirements that allow for the importation of a variety of products from regions not considered free of diseases of concern. These requirements are contained largely in 9 CFR part 94. Inquiries regarding these requirements or requests for approval of new requirements may be directed to the National Center for Import and Export: Telephone (301) 851-3300 or email AskNCIE.Products@aphis.usda.gov.

Additionally, several of the commenters addressed specific provisions of the proposal.

One commenter objected to the proposal to allow APHIS to initiate an evaluation of a foreign country's disease status in the absence of a request from that foreign country, stating that multinational meat packers might lobby APHIS to conduct such evaluations in order to source meat and livestock.

We are making no changes to the proposed rule in response to this comment. If there is a U.S. market for meat or livestock from a foreign region but APHIS has not yet evaluated its disease risk, the foreign government of that region will likely request an evaluation because of the value those exports would have for the foreign region. In any case, as stated in the proposed rule, APHIS anticipates that most evaluations will be done at the request of a foreign country. There may be instances, however, when it will be beneficial for APHIS to initiate an evaluation, and we reserve the right to do so. Even in such cases, we could not conduct the evaluation without the cooperation of the foreign government, which would need to supply information and allow access for any necessary site visits. As with any evaluation, there would be opportunity for the public to review and comment on the evaluation and proposed disease status.

One commenter objected to our proposal to remove the statement in § 92.2(d) that supporting information submitted with country requests will be made available to the public prior to initiation of rulemaking. The commenter stated withholding such information will severely limit APHIS' transparency. Another commenter expressed concern that this change would reduce the amount of time that supporting information regarding a country's disease status is available to the public.

We are making no change in response to these comments. The intent of this statement was to assure the public that they will have access to, and opportunity to comment on, the information upon which APHIS bases its evaluation, as well as the evaluation itself. As discussed in the proposed rule, this has been our practice, and it will continue to be our practice. Moreover, there will be no change in when we make the supporting information available. We will continue to make both the supporting information and the evaluation available when we announce our intention to recognize the animal health status of a region and open the public comment period. We were concerned that the statement we proposed to remove suggested that the supporting information might be made available sooner, perhaps at the time of the initial submission of the request, when the information may be incomplete or inadequate. Additionally, this is not the only information APHIS relies upon to make its determination. In addition to information provided by the requesting country, we also gather information from literature, reports, and site visits and consider all of this in preparing our evaluation. We believe that the public should consider all of the information together, and that it could be confusing or misleading to release it in stages.

One commenter requested that, when we make available to the public a list of regions that have requested recognition of their animal health status, we include an indication of the animal species and diseases under evaluation with respect to each region. Another commenter recommended that we encourage foreign jurisdictions to specify the type of animal or product they wish to export and that we also make that information available to the public when we have it.

We agree with the suggestions. Paragraph § 92.2(d) in this final rule provides that APHIS will list on its Web site each region that has requested APHIS recognition of its animal health status, the disease(s) under evaluation, and, if the information is available, the animal(s) or product(s) the region wishes to export.

One commenter said that while the proposed changes would facilitate the work of foreign governments in submitting information, he remains concerned about the length of time it can take to complete assessments. The commenter referenced provisions in Annex C of the WTO-SPS Agreement that recommend that Members publish the standard processing period for evaluation requests or communicate the anticipated processing period to the applicant upon request.

We are making no changes to the proposed rule in response to this comment. Because the time required for each evaluation varies, estimates must be made on a case-by-case basis, which APHIS will communicate with the applicant upon request, consistent with Annex C.

One commenter asked what we mean by the wording “safely granted” in proposed § 92.2(e), which says: “If, after review and evaluation of the information submitted in accordance with paragraph (b) or (c) of this section, APHIS believes the request can be safely granted, APHIS will indicate its intent and make its evaluation available for public comment through a document published in the Federal Register .”

We mean that APHIS has determined that imports from the region would present a low risk of introducing a particular disease into the United States and may be safely imported.

A few commenters also made suggestions or raised issues not directly related to the changes we proposed, including expanding APHIS' oversight of other animals, including rodents; data sharing among regulatory agencies; conducting post-mortem examinations of a representative sample of imported livestock to rule out “potential disease”; and the agreement between the European Commission and the United States on sanitary measures. Because these matters are outside the scope of this rulemaking, we are not addressing them here.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the change discussed above.

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

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT .

The economic analysis identifies importers and producers of animals and animal products as the small entities most likely to be affected by this action and considers the reduction in time between receipt of a request by APHIS and initiation of an evaluation.

Based on the information presented in the analysis, we expect that decreasing the amount of time and APHIS resources required to conduct such an evaluation would not have a significant economic effect on the entities affected.

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

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, we are amending 9 CFR part 92 as follows:

Reason for No Prior Notice and Comment Before Adoption

The substance of these special conditions has been subjected to the notice and comment period previously and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Further, a delay in the effective date of these special conditions would significantly delay issuance of the design approval and thus delivery of the helicopter, which is imminent. Therefore, the FAA has determined that prior public notice and comment are unnecessary, impracticable, and contrary to the public interest, and finds good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment.

While we did not precede this with a notice of proposed special conditions, we invite interested people to take part in this action by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring additional expense or delay. We may change these special conditions based on the comments we receive.

On November 11, 2008, Agusta applied for a change to Type Certificate (TC) No. R00002RD to install an optional SAR AFCS in the Model AB139 and AW139 helicopters. The AB139 and AW139 models are transport category helicopters certificated to Category A and Category B requirements, and instrument flight certificated under the requirements of Appendix B to 14 CFR part 29, Amendment 29-40.

There is a need to use dedicated AFCS upper modes, in which a fully coupled autopilot provides operational SAR profiles, for SAR operations conducted over water in offshore areas clear of obstructions. The SAR modes enable the helicopter pilot to fly fully coupled maneuvers, to include predefined search patterns during cruise flight, and to transition from cruise flight to a stabilized hover and departure (transition from hover to cruise flight). The SAR AFCS also includes an auxiliary crew control that allows another crewmember (such as a hoist operator) to have limited authority to control the helicopter's longitudinal and lateral position during hover operations.

Flight operations conducted over water at night may have an extremely limited visual horizon with little visual reference to the surface even when conducted under Visual Meteorological Conditions. Consequently, the certification requirements for SAR modes must meet Appendix B to 14 CFR part 29 for helicopter instrument flight. While this appendix prescribes airworthiness criteria for instrument flight, it does not consider operations below instrument flight minimum speed (V MINI ), whereas the SAR modes allow for coupled operations at low speed, all-azimuth flight to zero airspeed (hover).

Since SAR operations have traditionally been a public use mission, the use of SAR modes in civil operations requires special airworthiness standards (special conditions) to maintain a level of safety consistent with Category A and Instrument Flight Rule (IFR) certification. In this regard, 14 CFR part 29 lacks adequate airworthiness standards for AFCS SAR mode certification to include flight characteristics, performance, and installed equipment and systems.

Under 14 CFR 21.101, Agusta must show the AW139 and AB139 model helicopters, as changed, continue to meet either the applicable provisions of the rules incorporated by reference in TC No. R00002RD or the applicable regulations in effect on the date of application for the change, depending on the significance of the change as defined by 14 CFR 21.101. The regulations incorporated by reference in the TC are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in R00002RD are as follows:

(a) 14 CFR 21.29 and Part 29, Amendments 29-1 through 29-45.

(b) Appendix B to Part 29, Amendment 29-40.

(c) 14 CFR part 36, Appendix H, Amendment 36-1 through Amendment 36-25.

(d) Special Condition No. 29-0010-SC, High Intensity Radiated Fields (HIRF), dated Feb. 19, 2004.

(e) Equivalent Level of Safety Findings issued against:

(1) 14 CFR 29.1305, as documented in AB139 FAA Memo dated Dec. 20, 2004.

(2) 14 CFR 29.1321, as documented in AB139 FAA Memo dated Dec. 20, 2004.

If the Administrator finds the applicable airworthiness standards (i.e., 14 CFR part 29) do not contain adequate or appropriate safety standards for the Agusta model AW139 and AB139 helicopters because of a novel or unusual design feature, special conditions are prescribed under 14 CFR 21.16.

The FAA issues special conditions, as defined in § 11.19, under § 11.38, and they become part of the type certification basis under § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the TC for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same TC be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model.

The Agusta model AW139 and AB139 helicopters will incorporate the following novel or unusual design features:

The SAR system is composed of a navigation computer with SAR modes, an AFCS that provides coupled SAR functions, hoist operator control, a hover speed reference system, and two radio altimeters. The AFCS coupled SAR functions include:

(a) Hover hold at selected height above the surface.

(b) Ground speed hold.

(c) Transition down and hover to a waypoint under guidance from the navigation computer.

(d) SAR pattern, transition down, and hover near a target over which the helicopter has flown.

(e) Transition up, climb, and capture a cruise height.

(f) Capture and track SAR search patterns generated by the navigation computer.

(g) Monitor the preselected hover height with automatic increase in collective if the aircraft height drops below the safe minimum height.

These SAR modes are intended to be used over large bodies of water in areas clear of obstructions. Further, use of the modes that transition down from cruise to hover will include operation at airspeeds below V MINI .

The SAR system only entails navigation, flight control, and coupled AFCS operation of the helicopter. The system does not include the additional equipment that may be required for over water flight or external loads to meet other operational requirements.

These special conditions apply to the Agusta Model AW139 and AB139 helicopters. Should Agusta apply at a later date for a change to the TC to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(d).

This action affects only certain novel or unusual design features on two model helicopters (i.e., AW139 and AB139 helicopters). It is not a rule of general applicability.

On June 26, 2012, we issued emergency AD 2012-13-51, which requires a one-time detailed or borescope inspection of the left- and right-hand inboard vent holes for debris or obstructions, and repair if necessary. Emergency AD 2012-13-51 also requires reporting positive inspection findings to the manufacturer. This action was prompted by a report from the Civil Aviation Authority of Israel (CAAI), which is the airworthiness authority for Israel, indicating that an unsafe condition may exist on Gulfstream Aerospace LP Model Gulfstream G150 airplanes. The CAAI advises that fasteners protruding from the lower wing surface were discovered during a post-flight inspection. Investigation revealed structural damage to (and separation of) ribs from wing planks.

Further inspection showed that the inboard vent tube hole was completely covered with sealant, which blocked airflow through the vent. This condition was also found on some airplanes in production. Under these conditions, the rise of internal pressure during pressure fueling or due to thermal expansion is sufficient to damage the wing. This condition, if not detected and corrected, could compromise the integrity of the wing structure.

Gulfstream Aerospace LP has issued Gulfstream G150 Alert Service Bulletin 150-28A-146, dated June 22, 2012. The service information describes procedures for a one-time detailed or borescope inspection of the left- and right-hand inboard vent holes for debris and obstructions. The service information specifies to contact the manufacturer if any debris or obstruction is found. The CAAI mandated this service bulletin and issued Emergency Airworthiness Directive 28-12-06-18, dated June 24, 2012 (referred to after this as “the MCAI”), to ensure the continued airworthiness of these airplanes in Israel.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

Since the unsafe condition described is likely to exist or develop on other airplanes of the same type design, we issued emergency AD 2012-13-51 to detect and correct compromised integrity of the wing structure. The AD requires a one-time detailed or borescope inspection of the left- and right-hand inboard vent holes for debris or obstructions, and repair if necessary. The AD also requires reporting positive inspection findings to the manufacturer.

We found that immediate corrective action was required; therefore, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual notices issued on June 26, 2012, to all known U.S. owners and operators of Gulfstream Aerospace LP (Type Certificate previously held by Israel Aircraft Industries, Ltd.) Model Gulfstream G150 airplanes. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

We consider this AD interim action. We may consider further rulemaking when additional information is available.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because we received a report indicating that an inboard vent tube hole was completely covered with sealant, which blocked airflow through the vent. Under these conditions, the rise of internal pressure during pressure fueling or due to thermal expansion is sufficient to damage the wing. We are issuing this AD to detect and correct compromised integrity of the wing structure. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2012-0675 and Directorate Identifier 2012-NM-120-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 58 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Discussion

On April 4, 2012, at 77 FR 20321, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 to include an AD that would apply to ECD Model MBB-BK 117 A-3, MBB-BK 117 A-4, MBB-BK B-1, MBB-BK 117 B-2, and MBB-BK C-1 helicopters equipped with a certain hoist system. That NPRM proposed to require deactivating the entire hoist system or deactivating the hoist system cable cutter function on the operator handle. The proposed requirements were intended to prevent uncommanded cutting of the hoist cable and subsequent injury to persons being lifted by the hoist.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2011-0126, dated July 1, 2011 (EASA AD 2011-0126), to correct an unsafe condition for the ECD Model MBB-BK 117 A-3, MBB-BK 117 A-4, MBB-BK B-1, MBB-BK 117 B-2, and MBB-BK C-1 helicopters equipped with a certain hoist system. EASA AD 2011-0126 requires deactivation of the affected external hoist system by pulling and securing the related circuit breakers, or by removing the hoist boom.

After EASA AD 2011-0126 was issued, it was discovered that pulling the circuit breaker WARN ANN II degraded the annunciator system's redundant power supply, so that pilots could not be warned of a second helicopter system failure. Prompted by these findings, EASA issued superseding EASA AD No. 2011-0131, dated July 8, 2011 (EASA AD 2011-0131), to require pulling only three circuit breakers (CABLE CUTTER, WINCH CONT, and WINCH BOOM), while circuit breaker WARN ANN II remains inserted.

EASA advises that since EASA AD 2011-0131 was issued “a corrective action has been developed to establish an adequate safety level, while a terminating action is under investigation but currently not available.” EASA subsequently issued the current EASA AD No. 2011-0148, dated August 5, 2011 (EASA AD 2011-0148), which retains the requirements of EASA AD 2011-0131 and requires modification of the helicopter wiring and operator handle, part number (P/N) 76803, a revision to the Rotorcraft Flight Manual and Supplement, and repetitive inspections of the operator handle. EASA AD 2011-0148 also requires implementing a 10-year time frame for overhaul of the operator handle.

We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM.

These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

We consider this AD to be an interim action. The design approval holder is currently developing a terminating action to address the unsafe condition identified in this AD. Once this terminating action is developed, approved, and available, we might consider additional rulemaking.

This AD applies to the ECD Model MBB-BK 117 A-4 model. The EASA AD makes no mention of this model. The EASA AD also applies to the MBB-BK 117 A-1 model. Eurocopter informs us that the MBB-BK 117 A-1 model no longer exists, so we did not include it in our AD. The EASA AD requires temporary revisions to the Rotorcraft Flight Manual and its supplements; this AD does not. The EASA AD requires overhaul of the operator handle every ten years; this AD does not.

ECD has issued Emergency Alert Service Bulletin MBB-BK117-80-166, Revision 1, dated August 4, 2011 (ASB). The ASB specifies the deactivation of the cable cutter function on the operator handle. After the cable cutter function on the operator handle has been deactivated, the rescue winch may be used.

We estimate that this AD will affect about 12 helicopters of U.S. registry.

We estimate the following costs to comply with this AD:

• Option 1: Pull and secure three circuit breakers. We estimate that this task will require about one half-hour to complete. At $85 per work-hour, the labor cost will total about $43. No parts will be needed, so we estimate the total cost per helicopter to be $43, or $516 for the fleet.

• Option 2: Remove the hoist boom from the helicopter. We estimate that this task will require 1.5 hours to complete at $85 per work-hour for a total labor cost of about $128. No parts will be needed, so we estimate the total cost per helicopter to be $128, or $1,536 for the fleet.

• Option 3: We estimate that modifying the hoist operator handle will require four work-hours at $85 per work-hour for a total labor cost of $340 per helicopter. Parts will cost about $92. Inspecting the hoist-operator handle for damage will take about one half-hour for a labor cost of about $43. For 12 monthly inspections per year, the annual cost will total $516. We estimate that replacing the operator handle with a new operator handle will require 0.25 work hour at $85 an hour for a labor cost of about $21 per helicopter. Parts will cost about $18,500 for a total cost of $18,521 per helicopter. Total costs per helicopter will vary, depending on whether repairs are needed.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

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

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

Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

During a flight test of a Model EC155B1 helicopter, intermittent uncommanded roll oscillations were discovered during coupled instrument landing system (ILS) and localizer (LOC) approaches. The aircraft, which was coupled to the autopilot when these oscillations occurred, was not able to provide a stabilized approach from the final approach fix through the decision altitude or the minimum descent altitude. These intermittent oscillations occur during the landing phase of a flight, at an altitude of 500 feet or less above ground level, and result in higher single-pilot workload.

After an investigation, Eurocopter determined that these oscillations were caused by software in the automated flight control system (AFCS) that does not adequately filter the electronic “noise” from the U.S. ILS and LOC signals. This behavior of the autopilot was not experienced by aircraft operating in European airspace. An additional FAA flight test of an EC155B1 with unmodified AFCS software coupled to various ILS signals confirmed the oscillations, and that they can roll the helicopter up to +/−15 degrees.

Eurocopter is developing a software modification that will update the filtering algorithms for U.S. category 1 ILS and LOC signals. Until this update is approved by the European Aviation Safety Agency and validated by the FAA, we have determined that single pilot IFR operations constitute an unsafe condition for this model helicopter.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. We are issuing this AD because we evaluated all the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of the same type design.

This AD requires, before further flight, changing the minimum flight crew requirements for IFR operations from one pilot to two by revising the rotorcraft flight manual (RFM) Operating Limitations section.

We consider this AD to be an interim action. The design approval holder is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.

We estimate that this AD will affect six helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. Revising the RFM will require about .25 hour at an average labor rate of $85 per work-hour, for a total cost per helicopter of about $22 and a total cost to U.S operator fleet of $132.

Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the required corrective actions must be accomplished before further flight.

Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in less than 30 days.

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

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

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

For the reasons discussed, I certify that this AD:

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

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

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

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

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

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

History

On May 9, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish controlled airspace at Roundup, MT (77 FR 27148). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. The FAA received three comments, all from the National Business Aviation Association (NBAA).

The NBAA comments recommended that the FAA lower some of the adjacent Class E airspace, which is beyond the TAAs, down to 1,200 feet above the surface to accommodate orderly en route descent into the respective TAA because the NBAA feels that aircraft will not have enough airspace to access the TAAs. The airspace in question includes the following areas where Class E begins at 14,500 feet MSL: The large area to the north, the two smaller areas to the west, and the small area to the east. The NBAA is also concerned that the Minimum Instrument Flight Rules Altitude (MIA) outside the 1,200 feet above the surface would affect air traffic services into the TAAs from the north, west and east. Finally, the commenter points out that extending the Class E 1,200-foot area would provide relief to Salt Lake City Air Route Traffic Control Center (ARTCC).

The FAA believes that lowering this airspace is outside the scope of this rulemaking at this time, and would not serve the immediate purpose of establishing the airspace necessary for the safety of aircraft within the Roundup, MT, airport area.

Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace, extending upward from 700 feet above the surface, at Roundup Airport, to accommodate IFR aircraft executing new RNAV (GPS) standard instrument approach procedures at the airport. This action is necessary for the safety and management of IFR operations.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation because the anticipated impact is minimal. This rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act because this is a routine matter that will only affect air traffic procedures and air navigation. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority because it establishes additional controlled airspace at Roundup Airport, Roundup, MT.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Among other provisions of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act), Public Law 110-53, 121 Stat. 266, section 1536 re-enacted the whistleblower provision in STAA, 49 U.S.C. 31105 (previously referred to as “Section 405”), with certain amendments. The regulatory revisions described herein reflect these statutory changes and also seek to clarify and improve OSHA's procedures for handling STAA whistleblower claims, as well as to set forth interpretations of STAA. To the extent possible within the bounds of applicable statutory language, these revised regulations are designed to be consistent with the procedures applied to claims under other whistleblower statutes administered by OSHA, including Section 211 of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5851, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121, and Title VIII of the Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. 1514A. Responsibility for receiving and investigating complaints under 49 U.S.C. 31105 has been delegated by the Secretary of Labor (Secretary) to the Assistant Secretary of Labor for Occupational Safety and Health (Assistant Secretary). Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). Hearings on determinations by the Assistant Secretary are conducted by the Office of Administrative Law Judges, and appeals from decisions by administrative law judges (ALJs) are decided by the Department of Labor's Administrative Review Board (ARB) (Secretary's Order 1-2010), 75 FR 3924-01 (Jan. 25, 2010).

The 9/11 Commission Act amended 49 U.S.C. 31105, and the related definitions provision at 49 U.S.C. 31101, by making the changes described below.

Before passage of the 9/11 Commission Act, STAA protected certain activities related to commercial motor vehicle safety. The 9/11 Commission Act expanded STAA's coverage to commercial motor vehicle security. In particular, 49 U.S.C. 31105(a)(1)(A) previously made it unlawful for a person to discharge, discipline, or discriminate against an employee regarding pay, terms, or privileges of employment because the employee, or another person at the employee's request, filed a complaint or began a proceeding related to a violation of a commercial motor vehicle safety regulation, standard or order, or testified or planned to testify in such a proceeding. The 9/11 Commission Act expanded this provision to include complaints and proceedings related to violations of commercial motor vehicle security regulations, standards, and orders.

Prior to the 2007 amendments, paragraph (a)(1)(B)(i) of STAA's whistleblower provision prohibited a person from discharging, disciplining, or discriminating against an employee regarding pay, terms or privileges of employment for refusing to operate a vehicle in violation of a regulation, standard, or order related to commercial motor vehicle safety or health. The statute also protected any employee who refused to operate a vehicle because he or she had a reasonable apprehension of serious injury to himself or herself or the public because of the vehicle's unsafe condition. The recent STAA amendments expanded these protections to cover: (1) Any employee who refuses to operate a vehicle in violation of regulations, standards, or orders related to commercial motor vehicle security; and (2) any employee who refuses to operate a vehicle because he or she has a reasonable apprehension of serious injury to himself or herself or the public due to the vehicle's hazardous security condition.

Before the statutory amendments, paragraph (a)(2) of STAA's whistleblower provision provided that an employee's apprehension of serious injury was reasonable only if a reasonable person in the circumstances then confronting the employee would have concluded that the “unsafe condition” of the vehicle established a real danger of accident, injury, or serious impairment to health. Moreover, to qualify for protection under this provision the employee had to have sought from the employer, and been unable to obtain, correction of the “unsafe condition.” The August 2007 amendments replaced the term “unsafe condition” with the phrase “hazardous safety or security condition” throughout this paragraph.

The 9/11 Commission Act added a new paragraph to 49 U.S.C. 31105(a)(1)(A)(ii), making it unlawful for a person to discharge, discipline or discriminate against an employee regarding pay, terms or privileges of employment because of a perception that the employee has filed or is about to file a complaint or has begun or is about to bring a proceeding concerning a violation of a commercial motor vehicle safety or security regulation, standard, or order. Paragraph (a)(1)(C) of 49 U.S.C. 31105 is also new and makes it unlawful to discharge, discipline, or discriminate against an employee regarding pay, terms, or privileges of employment because the employee accurately reports hours on duty pursuant to 49 U.S.C. Chapter 315. The recent statutory amendments also added paragraph (a)(1)(D) to 49 U.S.C. 31105. This paragraph prohibits discharging, disciplining or discriminating against an employee regarding pay, terms or privileges of employment because the employee cooperates, or is perceived as being about to cooperate, with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board. Finally, the 9/11 Commission Act inserted paragraph (a)(1)(E) into 49 U.S.C. 31105. This provision prohibits a person from discharging, disciplining, or discriminating against an employee regarding pay, terms or privileges of employment because the employee furnishes, or is perceived as having furnished or being about to furnish, information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency about the facts concerning any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation.

Prior to the 9/11 Commission Act, the parties' burdens of proof in STAA actions were understood to be analogous to those developed for retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. See, e.g., Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21-22 (1st Cir. 1998); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). The plaintiff's prima facie case could be carried by a sufficient showing that (1) he or she engaged in protected activity; (2) he or she suffered an adverse action; and (3) a causal connection existed between the two events. Id. The ARB also required proof that the employer was aware that the employee had engaged in the protected activity. See, e.g., Baughman v. J.P. Donmoyer, Inc., No. 05-1505, 2007 WL 3286335, at *3 (ARB Oct. 31, 2007).

Once the complainant made this showing, an inference of retaliation arose and the burden shifted to the employer to produce evidence of a legitimate, non-retaliatory reason for the adverse action. Clean Harbors, 146 F.3d at 21; Yellow Freight, 27 F.3d at 1138. If the employer met this burden of production, the inference of retaliation was rebutted and the burden shifted back to the complainant to show by a preponderance of the evidence that the legitimate reason was a pretext for unlawful retaliation. Id. Where there was evidence that the employer acted out of mixed motives, i.e., it acted for both permissible and impermissible reasons, the employer bore “the burden of establishing by a preponderance of the evidence that it would have taken the adverse employment action in the absence of the employee's protected activity.” Clean Harbors, 146 F.3d at 21-22.

The 9/11 Commission Act amended paragraph (b)(1) of 49 U.S.C. 31105 to state that STAA whistleblower complaints will be governed by the legal burdens of proof set forth in AIR21 at 49 U.S.C. 42121(b). AIR21 contains whistleblower protections for employees in the aviation industry. Under AIR21, a violation may be found only if the complainant demonstrates that protected activity was a contributing factor in the adverse action described in the complaint. 49 U.S.C. 42121(b)(2)(B)(iii). Relief is unavailable if the employer demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the protected activity. 49 U.S.C. 42121(b)(2)(B)(iv). See Vieques Air Link, Inc. v. Dep't of Labor, 437 F.3d 102, 108-09 (1st Cir. 2006) (per curiam) (burdens of proof under AIR21).

Prior to the 9/11 Commission Act, STAA's whistleblower provision required the Secretary to notify persons when complaints were filed against them. The statute has now been amended at paragraph (b)(1) to clarify that this notice must be in writing. Similarly, the 9/11 Commission Act amended paragraph (b)(2)(A) of 49 U.S.C. 31105 to clarify that the Secretary's findings must be in writing.

Paragraph (b)(3)(A) of 49 U.S.C. 31105 previously compelled the Secretary, upon finding a violation of STAA's whistleblower provision, to order the employer to take affirmative action to abate the violation, reinstate the complainant to his or her former position with the same pay and terms and privileges of employment, and pay compensatory damages, including backpay. The 9/11 Commission Act amended paragraph (b)(3)(A)(iii) to reflect existing law on damages in STAA whistleblower cases and expressly provide for the award of interest on backpay as well as compensation for any special damages sustained as a result of the unlawful discrimination, including litigation costs, expert witness fees, and reasonable attorney fees. The 2007 amendments also added a new provision to 49 U.S.C. 31105, paragraph (b)(3)(C), authorizing punitive damage awards of up to $250,000.

The August 2007 amendments added paragraph (c) to 49 U.S.C. 31105. That paragraph provides for de novo review of a STAA whistleblower claim by a United States district court in the event that the Secretary has not issued a final decision within 210 days after the filing of a complaint and the delay is not due to the complainant's bad faith. The provision provides that the court will have jurisdiction over the action without regard to the amount in controversy and that the case will be tried before a jury at the request of either party.

The 9/11 Commission Act added a new provision to 49 U.S.C. 31105 at paragraph (f) clarifying that nothing in the statute preempts or diminishes any other safeguards against discrimination provided by Federal or State law. The 2007 amendments to STAA also added a provision at paragraph (g) in 49 U.S.C. 31105 stating that nothing in STAA shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. New paragraph (g) further states that rights and remedies under 49 U.S.C. 31105 “may not be waived by any agreement, policy, form, or condition of employment.”

The 9/11 Commission Act added a new provision to 49 U.S.C. 31105 at paragraph (h) regarding the circumstances in which the Secretary of Transportation and the Secretary of Homeland Security may disclose the names of employees who have provided information about certain alleged violations. In addition, the amendments added a new paragraph (i) to 49 U.S.C. 31105, which provides that the Secretary of Homeland Security will establish a process by which any person may report motor carrier vehicle security problems, deficiencies or vulnerabilities. Neither of these amendments significantly impacts OSHA's handling of whistleblower complaints under STAA.

Definitions applicable to STAA are found at 49 U.S.C. 31101. That section defines “employee” as a driver of a commercial motor vehicle (including an independent contractor when personally operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who (i) directly affects commercial motor vehicle safety in the course of employment by a commercial motor carrier; and (ii) is not an employee of the Federal, State or local government acting in the course of employment. The 9/11 Commission Act incorporated this definition into the whistleblower section of STAA, 49 U.S.C. 31105, at paragraph (j), and expanded it to include employees who directly affect commercial motor vehicle security in the course of employment by a commercial motor carrier.

On August 31, 2010, OSHA published in the Federal Register an IFR implementing statutory changes to STAA enacted into law on August 3, 2007, as part of the 9/11 Commission Act, Public Law 110-53, 121 Stat. 266, as well as making other improvements to Part 1978. 75 FR 53544 (Aug. 31, 2010). In addition to promulgating the IFR, OSHA's notice included a request for public comment on the interim rules by November 1, 2010. There were no objections to most of the IFR and thus OSHA has adopted the IFR, except as noted.

In response to the IFR, three organizations—the Government Accountability Project (GAP), the National Whistleblower Center (NWC), and the Transportation Trades Department, AFL-CIO (TTD), filed comments with the agency within the public comment period. OSHA has reviewed and considered these comments and now adopts this final rule, which has been revised in part to address problems perceived by the agency and the commenters.

NWC made several comments addressing particular provisions of the rule. These comments have been addressed, and changes to the regulatory provisions have been explained in the Summary and Discussion of Regulatory Provisions (below), where applicable. GAP commented that “these rules reasonably interpret statutory requirements and in some instances [will] significantly improve [OSHA] procedures to investigate whistleblower complaints.” GAP specifically expressed support for the following provisions: .103(b), .103(d), .104(c), .104(d), and certain aspects of .104(f). Finally, TTD expressed its support for the interim final rules in general, commenting that the “rules implement improved procedures for handling whistleblower complaints under [STAA].” TTD believes that the changes “provide important protections for transportation workers,” and TTD applauded OSHA for moving forward with the rulemaking. TTD's comments went on to suggest some changes and modifications to other interim final rules that were submitted on the same docket as the STAA interim final rule, namely the Procedures for the Handling of Retaliation Complaints Under the National Transit System Security Act and the Federal Railroad Safety Act. Those specific comments were not relevant to STAA and thus have not been addressed in the regulatory text.

The regulatory provisions in this part have been made to reflect the 9/11 Commission Act's amendments to STAA, to make other improvements to the procedures for handling STAA whistleblower cases, to interpret some provisions of STAA, and, to the extent possible within the bounds of applicable statutory language, to be consistent with regulations implementing the whistleblower provisions of the following statutes, among others, that are also administered and enforced by OSHA: the Safe Drinking Water Act, 42 U.S.C. 300j-9(i); the Federal Water Pollution Control Act, 33 U.S.C. 1367; the Toxic Substances Control Act, 15 U.S.C. 2622; the Solid Waste Disposal Act, 42 U.S.C. 6971; the Clean Air Act, 42 U.S.C. 7622; the ERA; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9610 (all regulations for these statutory provisions jointly codified at 29 CFR part 24); AIR21, codified at 29 CFR part 1979; SOX, codified at 29 CFR part 1980; the Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60129, codified at 29 CFR part 1981; the National Transit Systems Security Act, 6 U.S.C. 1142, the Federal Railroad Safety Act, 49 U.S.C. 20109, codified at 29 CFR part 1982; and the Consumer Product Safety Improvement Act, 15 U.S.C. 2087, codified at 29 CFR part 1983. The section numbers of these STAA regulations correspond as closely as possible with the numbering in the regulations implementing other whistleblower statutes administered by OSHA.

These regulatory provisions use more appropriate terminology. First, cases brought under the whistleblower provisions of STAA are referred to as actions alleging “retaliation” rather than “discrimination.” This terminology, which has already been used in the regulations implementing the ERA and the other whistleblower statutes covered by 29 CFR part 24, is not intended to have substantive effect. It simply reflects the fact that claims brought under these whistleblower provisions are prototypical retaliation claims. A retaliation claim is a specific type of discrimination claim that focuses on actions taken as a result of an employee's protected activity rather than as a result of an employee's characteristics ( e.g., race, gender, or religion).

Second, before the issuance of the IFR, the regulations referred to persons named in STAA whistleblower complaints as “named persons,” but in these regulations they are referred to as “respondents.” Again, this wording is not intended to have any substantive impact on the handling of STAA whistleblower cases. This wording simply reflects a preference for more conventional terminology.

This section describes the purpose of the regulations implementing STAA's whistleblower provision and provides an overview of the procedures contained in the regulations. Paragraph (a) of this section includes an updated citation reference to the correct section of the United States Code where STAA's whistleblower provision is located and to reflect the recent statutory amendments extending coverage to activities pertaining to commercial motor vehicle security matters. Minor editorial revisions made to paragraph (b) of this section in the IFR are continued here.

The express inclusion of certain provisions in Part 1978 should not be read to suggest that similar legal principles may not be implied under other OSHA whistleblower rules. In other words, the canon of construction expressio unius est exclusio alterius (the expression of one thing is the exclusion of another) should not be applied in comparing these rules to other OSHA whistleblower rules. See United States v. Vonn, 535 U.S. 55, 65 (2002) (canon not applied when contrary to intent of drafters). For example, the express references to oral and internal complaints in these rules do not imply that oral and internal complaints are not protected under other OSHA whistleblower statutes.

This section includes general definitions applicable to STAA's whistleblower provision. The definitions are organized in alphabetical order and minor edits made to clarify regulatory text in the IFR are adopted here.

A definition of “business days” in paragraph (c) clarifies that the term means days other than Saturdays, Sundays, and Federal holidays. This definition is consistent with 29 CFR 1903.22(c), an OSHA regulation interpreting the analogous term “working days” in section 10 of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 659, in the same way.

The regulations in effect before the IFR defined “commercial motor carrier” as a person who satisfied the definitions of “motor carrier” and “motor private carrier” in 49 U.S.C. 10102(13) and 10102(16). The IFR replaced that definition with: “Commercial motor carrier means any person engaged in a business affecting commerce between States or between a State and a place outside thereof who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate such a vehicle.” This definition of “commercial motor carrier” reflects the Secretary's longstanding practice of giving that phrase expansive meaning, i.e., including within its reach all motor carriers in or affecting commerce. See, e.g., Arnold v. Associated Sand and Gravel Co., ALJ No. 92-STA-19, 1992 WL 752791, at *3 (Sec'y Aug. 31, 1992) (appropriate to give the term “commercial” its legal meaning; “legislative history of the STAA * * * additionally militates in favor of construing the term expansively to describe motor carriers ‘in' or ‘affecting' commerce”). In addition, this definition of “commercial motor carrier” is more consistent with the statutory definition of “employer.” See 49 U.S.C. 31101(3). The definition in the IFR has been adopted here.

The statutory definition of “commercial motor vehicle” in paragraph (e) included in the IFR has been revised in the final rule. Rather than reiterate the statutory definition, the final rule simply refers to the definition of this term as provided in the statute, 49 U.S.C. 31101(1). This change is intended to ensure that the regulation refers to the appropriate statutory definition, should it be amended in the future. The definition of “employee” reflects the statutory amendment expanding coverage to individuals whose work directly affects commercial motor vehicle security. In addition, the statutory definitions of “employer” and “State” are in this section at paragraphs (i) and (n) respectively, and a paragraph at the end of this section clarifies that any future statutory amendments will govern in lieu of the definitions contained in section 1978.101. A definition of “complaint” in paragraph (g) clarifies the scope of activities protected by STAA's whistleblower provisions. See discussion of section 1978.102 (Obligations and prohibited acts) below.

The definition of “complainant” in paragraph (f) in the IFR has been changed slightly. The word “whistleblower” has been deleted because it is unnecessary.

A sentence has been added to the definition of “employee” in section 1978.101(h) to include former employees and applicants. Such language is included in the definition of “employee” in other OSHA whistleblower rules, such as those under the National Transit Systems Security Act and the Federal Railroad Safety Act (29 CFR 1982.101(d)), SOX (29 CFR 1980.101(g)), and the OSH Act (29 CFR 1977.5(b)). This interpretation is consistent with the Supreme Court's interpretation of the term “employee” in 42 U.S. C. 2000e-3a, the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, to include former employees. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Among the Court's reasons for this interpretation were the lack of temporal modifiers for the term “employee”; the reinstatement remedy, which only applies to former employees; and the remedial purpose of preventing workers from being deterred from whistleblowing because of a fear of blacklisting. These reasons apply equally to the anti-retaliation provision of STAA and the other whistleblower provisions enforced by OSHA.

The definition of “person” in paragraph (k) is basically the same as the one in the IFR except for the addition of “organized” before the word “group.” The definition reflects the statutory definition of “person” for the STAA whistleblower provision in 49 App. U.S.C. 2301(4) that existed before the 1994 codification of Title 49 of the United States Code, dealing with transportation. See Public Law 103-272, 108 Stat. 984. The provision at 49 App. U.S.C. 2301(4) stated: “ ‘person' means one or more individuals, partnerships, associations, corporations, business trusts, or any other organized group of individuals.” The definition of “person” was deleted from the codification because it was regarded as unnecessary due to the Dictionary Act's definition of “person” in 1 U.S.C. 1, which states that the term “includes” entities, such as individuals and corporations, which for the most part are the same as the entities listed in the definition in this rule. See note after 49 U.S.C. 31101. Changes in codifications are not intended to make substantive changes in a statute unless the congressional intent to do so is clear. Muniz v. Hoffman, 422 U.S. 454, 472 n.11 (1975); Carbo v. United States, 364 U.S. 611, 618-19 (1961). The congressional intent to rely on the definition of “person” in 1 U.S.C. 1 does not indicate an intent to change the definition. Practically all of the entities listed in 49 App. U.S.C. 2314 are the same as the ones specifically listed in 1 U.S.C. 1. Some of the entities are different, but the Dictionary Act definition, using the word “includes,” is not an exclusive list. Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“* * * term ‘including' is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.”). Furthermore, because the term “person” includes an individual and it is a “person” who is prohibited from engaging in the retaliation described in 49 U.S.C. 31105, a corporate officer or other individual responsible for the retaliation is individually liable under the STAA whistleblower provision. Smith v. Lake City Enterprises, Inc., Crystle Morgan, and Donald Morgan, Nos. 09-033, 08-091, 2010 WL 3910346, at *6 (ARB Sept. 24, 2010) (corporate president and sole shareholder individually liable under STAA), citing Wilson v. Bolin Assocs., Inc., ALJ No. 1991-STA-004 (Sec'y Dec. 30, 1991). Section 1978.102 has been corrected to reflect the fact that the statute imposes obligations on “person[s].”

This section describes the activities that are protected under STAA and the conduct that is prohibited in response to any protected activities. Insertion of this section in the IFR resulted in the renumbering of many subsequent sections; that renumbering is continued in the final rule. The discussion below highlights some significant interpretations of STAA in these provisions, but it is by no means exhaustive.

Among other prohibited acts, it is unlawful under STAA for a person to retaliate against an employee because the employee, or someone acting pursuant to the employee's request, has filed a complaint related to a violation of a commercial motor vehicle safety or security regulation, standard or order. 49 U.S.C. 31105(a)(1)(A)(i). STAA's whistleblower provision also prohibits a person from retaliating against an employee because the person perceives that the employee has filed or was about to file such a complaint. 49 U.S.C. 31105(a)(1)(A)(ii).

The Secretary has long taken the position that these provisions of STAA, as well as similarly worded provisions in other whistleblower statutes enforced by OSHA, cover both written and oral complaints to the employer or a government agency. The U.S. Supreme Court held that an analogous whistleblower provision in the Fair Labor Standards Act (FLSA), 29 U.S.C. 215(a)(3), protects oral as well as written complaints. Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 1329 (2011). Among other things, the FLSA forbids employers from discriminating against any employee “because such employee has filed any complaint.” Although the Court examined “filed any complaint” in the FLSA, the decision is applicable to analogous language in STAA, as well as in other OSHA whistleblower statutes. See Northcross v. Board of Education of the Memphis City Schools, 412 U.S. 427, 427-28 (1973) (statutes in pari materia should be construed similarly). Specifically, Congress's intent in passing the whistleblower provision of STAA was to encourage employee reporting of noncompliance with safety regulations. Brock v. Roadway Exp., Inc., 481 U.S. 252, 258 (1987). As with the FLSA, those employees who are in the best position to report complaints under this provision may find it difficult or impractical to reduce a complaint to writing. It is particularly important for STAA to cover oral as well as written complaints because in many cases truck drivers are out on the road and the only way they can communicate immediate concerns about violations of safety and security regulations is via CB radio or phone. Requiring that complaints of safety concerns and violations be in writing would undermine the basic purpose of the statute. Furthermore, since the passage of the STAA whistleblower provision, the ARB and federal courts have consistently held that protected activity under STAA includes oral, informal, and unofficial complaints about violations of commercial motor vehicle regulations. See, e.g., Harrison v. Roadway Express, Inc., No. 00-048, 2002 WL 31932546, at *4 (ARB Dec. 31, 2002) (“[C]omplaints about violations of commercial motor vehicle regulations may be oral, informal or unofficial.”), aff'd on other grounds, 390 F.3d 752 (2d Cir. 2004); see also, e.g., Calhoun v. Dep't of Labor, 576 F.3d 201, 212 (4th Cir. 2009) (citing Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993)) for the proposition that “written or oral” complaints can be protected under STAA). Cf. Power City Elec., Inc., No. C-77-197, 1979 WL 23049, at *2 (E.D. Wash. Oct. 23, 1979) (noting that the term “filed”, as used in Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 660(c), “is not limited to a written form of complaint.”). As the Court noted in Kasten, long-standing interpretations suggest that such views are “reasonable” and “consistent with the Act.” Kasten, 131 S.Ct. at 1335. For these reasons, sections 1978.102(b)(1) and 1978.102(e)(1) cover the filing of written and oral complaints with employers or government agencies, and the definition of the term “complaint,” reflecting this intent, in the IFR in section 1978.101 is reiterated here. Similarly, the words “orally or in writing” have been added after the words “filed” and “file” in sections 1978.102(b)(1) and .102(e)(2) to clarify that the protected activity includes oral as well as written communication.

Sections 1978.102(b)(1) and 1978.102(e)(2) clarify the long-standing position of the Secretary, supported by the courts of appeals, that under STAA and other OSHA whistleblower statutes the filing of a complaint is protected, whether the complaint is filed with an employer, a government agency, or others. Similarly, the definition of “complaint” in section 1978.101(g) states that the term includes complaints to employers, government agencies, and others. See 29 CFR 1977.9(c) (section 11(c) of the OSH Act protects complaints to an employer); McKoy v. North Fork Services Joint Venture, No. 04-176, 2007 WL 1266925, at *3 (ARB Apr. 30, 2007) (complaining to employer about violations of environmental statutes is protected activity). STAA does not specify the entities to whom a complaint may be filed in order to be protected. The preamble to the interim final rule noted: “The Secretary has long taken the position that these provisions of STAA, as well as similarly worded provisions in other whistleblower statutes enforced by OSHA, cover both written and oral complaints to the employer or a government agency.” 75 FR 53544, 53547 (Aug. 31, 2010) (emphasis added). In particular, the Secretary has ruled that complaints to an employer are protected under STAA in order to promote the statute's goal of highway safety. Israel v. Branrich, Inc., No. 09-069, 2011 WL 5023051, at *4 (ARB Sept. 29. 2011); Davis v. H.R. Hill, Inc., ALJ No.1986-STA-018 (Sec'y Mar. 19, 1987). This interpretation has been adopted by courts of appeals. Calhoun v. Dep't of Labor, 576 F.3d 201, 212 (4th Cir. 2009); Clean Harbors Envt'l Services, Inc. v. Herman, 146 F.3d 12, 19-21 (1st Cir. 1998). Cf. Minor v. Bostwick Laboratories, Inc., 669 F.3d 428 (4th Cir. 2012) (analogous anti-retaliation provision of Fair Labor Standards Act protects complaints to an employer).

In describing the conduct that is prohibited under STAA, the final rule adds the words “harass, suspend, demote” to paragraphs (b), (c), and (e) to make this rule more consistent with other OSHA whistleblower rules.

This section (formerly section 1978.102) was revised in the IFR to make it more consistent with the regulatory procedures for other OSHA-administered whistleblower laws; that revision is adopted here with minor editorial corrections.

Complaints filed under STAA's whistleblower provision need not be in any particular form. Complainants have always been permitted to file STAA whistleblower complaints either orally or in writing. In light of this longstanding practice, OSHA will continue to accept STAA whistleblower complaints in either oral or written form. Allowing STAA whistleblower complaints to be filed orally is also consistent with OSHA's practice under other OSHA whistleblower laws. Language has been added to paragraph (b) to clarify that when a complaint is made orally, OSHA will reduce the complaint to writing. In addition, paragraph (b) provides that if an employee is not able to file a complaint in English, OSHA will accept the complaint in any other language.

Language in paragraph (c) of the IFR providing that the complaint should be filed with the “* * * OSHA Area Director responsible for enforcement activities in the geographical area where the employee resides or was employed * * *” has been changed. “Area Director” has been changed to “office” in recognition of the possibility that organizational changes may take place.

Language in paragraph (d) clarifies the date on which a complaint will be considered “filed,” i.e., the date of postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office. To be timely, a complaint must be filed within 180 days of the occurrence of the alleged violation. Under Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to be when the retaliatory decision has been both made and communicated to the complainant. In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer's decision. Equal Emp't Opportunity Comm'n v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001).

Provisions dealing with tolling of the 180-day period for the filing of STAA whistleblower complaints were deleted in the IFR for consistency with other OSHA whistleblower regulations, which do not contain this language; the final rule makes no changes in this regard. This revision is not intended to change the way OSHA handles untimely complaints under any whistleblower laws. A sentence in the regulatory text clarifies that filing deadlines may still be tolled based on principles developed in applicable case law. See, e.g., Donovan v. Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1423-29 (10th Cir. 1984).

Finally, paragraph (e), “Relationship to Section 11(c) complaints,” conforms to similar provisions implementing other OSHA whistleblower programs and more clearly describes the relationship between Section 11(c) complaints and STAA whistleblower complaints. Section 11(c) of the OSH Act generally prohibits employers from retaliating against employees for filing safety or health complaints or otherwise initiating or participating in proceedings under the OSH Act. In some circumstances an employee covered by STAA may engage in activities that are protected under STAA and Section 11(c) of the OSH Act. For example, a freight handler loading cargo onto a commercial motor vehicle may complain about both the overloading of that vehicle (a safety complaint protected by STAA) and also about an unsafe forklift (a safety complaint covered by the OSH Act). In practice, OSHA would investigate whether either or both of these protected activities caused the firing. Paragraph (e) now clarifies that STAA whistleblower complaints that also allege facts constituting an 11(c) violation will be deemed to have been filed under both statutes. Similarly, Section 11(c) complaints that allege facts constituting a violation of STAA's whistleblower provision will also be deemed to have been filed under both laws. In these cases, normal procedures and timeliness requirements under the respective statutes and regulations will be followed.

OSHA notes that a complaint of retaliation filed with OSHA under STAA is not a formal document and need not conform to the pleading standards for complaints filed in federal district court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB Case No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding whistleblower complaints filed with OSHA under analogous provisions in the Sarbanes-Oxley Act need not conform to federal court pleading standards). Rather, the complaint filed with OSHA under this section simply alerts the agency to the existence of the alleged retaliation and the complainant's desire that the agency investigate the complaint. Upon the filing of a complaint with OSHA, the Assistant Secretary is to determine whether “the complaint, supplemented as appropriate by interviews of the complainant” alleges “the existence of facts and evidence to make a prima facie showing.” 29 CFR 1978.104(e). As explained in section 1978.104(e), if the complaint, supplemented as appropriate, contains a prima facie allegation, and the respondent does not show clear and convincing evidence that it would have taken the same action in the absence of the alleged protected activity, OSHA conducts an investigation to determine whether there is reasonable cause to believe that retaliation has occurred. See 49 U.S.C. 42121(b)(2), 29 CFR 1978.104(e).

This section (formerly section 1978.103) more closely conforms to the regulations implementing other whistleblower provisions administered by OSHA. Former paragraph (f) in section 1978.102, which deals with the notice sent to employers when complaints are filed against them, is in paragraph (a) in section 1978.104, where it more appropriately appears under the “Investigation” heading. In addition, OSHA here adopts minor revisions made to that paragraph in the IFR to be more consistent with similar provisions in other OSHA whistleblower regulations. Of particular note, OSHA adopts language in the IFR which was added requiring OSHA to send the Federal Motor Carrier Safety Administration (FMCSA) a copy of the notice that goes to the employer. This has been standard practice in any event. Minor editorial changes to the language of the IFR have been made.

Former section 1978.103(a), which simply stated that OSHA would investigate and gather data as it deemed appropriate, was deleted in the IFR as unnecessary; that deletion remains. The language in paragraph (a) of the IFR relating to the provision of information to respondent's counsel has been deleted because when the respondent is first notified about the complaint the respondent is usually not represented by counsel. Paragraph (b) conforms to other OSHA whistleblower regulations. Language describing the persons who can be present and the issues that can be addressed at OSHA's meetings with respondents was deleted in the IFR and is not present in the final rule, but this deletion is not substantive.

Paragraph (c) specifies that throughout the investigation the agency will provide to the complainant (or the complainant's legal counsel, if the complainant is represented by counsel) a copy of all of respondent's submissions to the agency that are responsive to the complainant's whistleblower complaint. Before providing such materials to the complainant, the agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The phrase “if necessary” has been added because not all of respondent's submissions will contain confidential information. Paragraph (d) addresses confidentiality in investigations. Minor editorial changes have been made.

Paragraph (e) reflects the incorporation of the AIR21 burdens of proof provision by the second sentence of 49 U.S.C. 31105(b)(1), which was added by the 9/11 Commission Act. This paragraph generally conforms to similar provisions in the regulations implementing the AIR21 and ERA whistleblower laws. All of these statutes now require that a complainant make an initial prima facie showing that protected activity was “a contributing factor” in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. Ferguson v. New Prime, Inc., No. 10-75, 2011 WL 4343278, at *3 (ARB Aug. 31, 2011); Clarke v. Navajo Express, No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011). The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. Complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place shortly after protected activity, giving rise to the inference that it was a contributing factor in the adverse action. Language from some of OSHA's other whistleblower regulations, including those implementing AIR21 and ERA, setting forth specific elements of the complainant's prima facie case, has been carried over into these regulations.

The revised STAA provision specifically bans retaliation against employees because of their perceived protected activity. This provision clarifies existing whistleblower law. See Reich v. Hoy Shoe Co., 32 F.3d 361, 368 (8th Cir. 1994) (“Construing § 11(c), the OSH Act's anti-retaliation provision, to protect employees from adverse employment actions because they are suspected of having engaged in protected activity is consistent with * * * the specific purposes of the anti-retaliation provisions.”). However, the references in this section to perceived protected activity have been deleted here because the concept is covered by the language of paragraph (e)(2)(ii) on suspected protected activity. Also, the final rule adds language clarifying that the revised STAA provision protects not only actual protected activity but also activity about to be undertaken.

If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the ERA, which is the same framework now found in the AIR21 law and STAA, served a “gatekeeping function” that “stemm[ed] frivolous complaints”). Even in cases where the complainant successfully makes a prima facie showing, the investigation must be discontinued if the employer demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the protected activity. Cf. Ferguson, supra (analogous burden shift in litigation); Clarke, supra (same). Thus, OSHA must dismiss a complaint under STAA and not investigate (or cease investigating) if either: (1) The complainant fails to meet the prima facie showing that protected activity or the perception of protected activity was a contributing factor in the adverse action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity or the perception thereof. The final rule makes other minor editorial corrections.

Former section 1978.103(c) was moved to paragraph (f) of this section in the IFR; that change remains. In the IFR minor revisions were made to this paragraph to conform to similar paragraphs in the regulations implementing the AIR21 and SOX whistleblower provisions; those changes remain. The provision allows 10 business days (rather than 5 days) for the respondent to present evidence in support of its position against an order of preliminary reinstatement. Paragraph (f) of this section has been revised to provide complainants with copies of the same materials provided to respondents under this paragraph, except to the extent that confidentiality laws require redaction.

NWC and GAP commented on the provisions in section 1978.104. NWC noted that to conduct a full and fair investigation, OSHA needs to obtain the available, responsive information from both parties. If one party does not have the information submitted by the other, NWC explained, that party cannot help the investigation by providing available information to shed light on the matter. NWC also suggested that the phrase “other applicable confidentiality laws” be replaced with more specific language describing the confidentiality laws that might apply to a respondent's answer.

GAP commented that while it was pleased with the provisions in section 1978.104 providing copies of respondent's submissions to complainants and protecting witness confidentiality, it was concerned that the procedures under section 1978.104(f) “disenfranchise[d] the victim, giving only one side of the dispute the chance to participate in the most significant step of the process” and that “[a]t a minimum, this procedural favoritism means there will not be an even playing field in the administrative hearing.” GAP advocated removing section 1978.104(f).

OSHA agrees with NWC and GAP that the input of both parties in the investigation is important to ensuring that OSHA reaches the proper outcome during its investigation. To that end, in response to the comments, the procedures under STAA have been revised to contain the following safeguards aimed at ensuring that complainants and respondents have equal access to information during the course of the OSHA investigation:

• Section 1978.104(c) provides that, throughout the investigation, the agency will provide the complainant (or the complainant's legal counsel if the complainant is represented by counsel) a copy of all of respondent's submissions to the agency that are responsive to the complainant's whistleblower complaint, with confidential information redacted as necessary, and the complainant will have an opportunity to respond to such submissions; and

• Section 1978.104(f) provides that the complainant will receive a copy of the materials that must be provided to the respondent under that paragraph, with confidential information redacted as necessary.

Regarding NWC's suggestion that OSHA provide more specific information about the confidentiality laws that may protect portions of the information submitted by a respondent, OSHA anticipates that the vast majority of respondent submissions will not be subject to any confidentiality laws. However, in addition to the Privacy Act, a variety of confidentiality provisions may protect information submitted during the course of an investigation. For example, a respondent may submit confidential business information, the disclosure of which would violate the Trade Secrets Act, 18 U.S.C. 1905. While the agency recognizes that a respondent must meet a high standard to show that the information it submits is protected and that it has a responsibility to independently evaluate claims that submissions contain confidential business information not subject to disclosure, it believes that the provision as drafted appropriately allows it to address legitimate claims of confidentiality.

With regard to GAP's comment that section 1978.104(f) should be removed, OSHA notes the purpose of 1978.104(f) is to ensure compliance with the Due Process Clause of the Fifth Amendment, as interpreted in the Supreme Court's ruling in Brock v. Roadway Express, Inc., 481 U.S. 252, 264 (1987), requiring OSHA to give the respondent the opportunity to review the substance of the evidence and respond, prior to ordering preliminary reinstatement.

Nonetheless, while recognizing that the purpose of section 1978.104(f) is to ensure that the respondents have been afforded due process prior to OSHA ordering preliminary reinstatement, OSHA appreciates that complainants wish to stay informed regarding their cases and may continue to have valuable input, even at this late stage in the investigation. Thus, under these rules, OSHA will provide complainants with a copy of the materials sent to the respondent under section 1978.104(f), with materials redacted in accordance with confidentiality laws.

Paragraph (a) in section 1978.104, as it existed before the IFR, now at paragraph (a) in this section, was updated in the IFR to reflect the recent amendments to STAA expanding available remedies; the final rule adopts those revisions. Minor editorial corrections have been made in the final rule. If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, he or she will order appropriate relief. Such order will include, where appropriate: a requirement that the respondent take affirmative action to abate the violation; reinstatement of the complainant to his or her former position with the same compensation, terms, conditions and privileges of the complainant's employment; payment of compensatory damages (backpay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees which the complainant has incurred); and payment of punitive damages up to $250,000. The final rule adds the words “take affirmative action” in connection with abatement of the violation because the statute uses this important term of labor law, found in the National Labor Relations Act at 29 U.S.C. 160(c) and Title VII of the Civil Rights Act of 1964, as amended, at 42 U.S.C. 2000e-5(g)(1). The word “same” has been inserted before “compensation” because this language is in the statute. A minor wording change, the deletion of the word “together”, has been made in the final rule. The discussion of punitive damages has been put in a separate sentence to track the statute.

In appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he or she received prior to his or her termination, but not actually return to work. Smith, supra, at *8 (front pay under STAA). Such front pay or economic reinstatement is also employed in cases arising under Section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815(c)(2). See, e.g., Secretary of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Congress intended that complainants be preliminarily reinstated to their positions if OSHA finds reasonable cause that they were discharged in violation of STAA's whistleblower provision. When a violation is found, the norm is for OSHA to order immediate, preliminary reinstatement. Neither an employer nor an employee has a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the complainant. In such situations, actual reinstatement might be delayed until after the administrative adjudication is completed as long as the complainant continues to receive his or her pay and benefits and is not otherwise disadvantaged by a delay in reinstatement. There is no statutory basis for allowing the employer to recover the costs of economically reinstating a complainant should the employer ultimately prevail in the whistleblower litigation.

In ordering interest on backpay, the agency has determined that, instead of computing the interest due by compounding quarterly the Internal Revenue Service interest rate for the underpayment of taxes, which under 26 U.S.C. 6621 is generally the Federal short-term rate plus three percentage points, interest will be compounded daily. The Secretary believes that daily compounding of interest better achieves the make-whole purpose of a backpay award. Daily compounding of interest has become the norm in private lending and recently was found to be the most appropriate method of calculating interest on backpay by the National Labor Relations Board. See Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 (2010). Additionally, interest on tax underpayments under the Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).

Paragraph (a)(2) of this section requires the Assistant Secretary to notify the parties if he or she finds that a violation has not occurred. Former section 1978.104(c), which provided for the suspension of 11(c) complaints pending the outcome of STAA proceedings, was deleted in the IFR; the final rule adopts that revision. As described above, section 1978.103(e) adequately describes the relationship between STAA and 11(c) complaints.

Paragraph (b) clarifies that OSHA need not send the original complaint to the Chief Administrative Law Judge when it issues its findings and preliminary order; a copy of the complaint will suffice. Former section 1978.105(b)(1) was moved to section 1978.105(c) in the IFR; the final rule adopts that revision. This paragraph states that the Assistant Secretary's preliminary order will be effective 30 days after receipt, or on the compliance date set forth in the preliminary order, whichever is later, unless an objection is filed. It also clarifies that any preliminary order requiring reinstatement will be effective immediately. This paragraph mirrors existing provisions in other OSHA whistleblower regulations. Minor editorial changes have been made in the final rule.

Minor revisions were made to paragraph (a), formerly section 1978.105(a), in the IFR to conform to other OSHA whistleblower regulations; the final rule adopts those revisions. Other minor revisions have been made in the final rule. The paragraph clarifies that with respect to objections to the findings and preliminary order, the date of the postmark, fax, or electronic communication transmittal is considered the date of the filing; if the objection is filed in person, by hand-delivery, or other means, the objection is filed upon receipt. The filing of objections is also considered a request for a hearing before an ALJ. The amended language also clarifies that in addition to filing objections with the Chief Administrative Law Judge, the parties must serve a copy of their objections on the other parties of record and the OSHA official who issued the findings and order. The requirement in the IFR that objections be served on the Assistant Secretary and the Associate Solicitor for Occupational Safety and Health has been deleted because such service is unnecessary. A failure to serve copies of the objections on the appropriate parties does not affect the ALJ's jurisdiction to hear and decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).

The title to former section 1978.105(b) was deleted in the IFR because it was unnecessary; the final rule adopts that revision. In addition, as previously mentioned, former paragraph (b)(1) in section 1978.105 was moved to new paragraph (c) in section 1978.105; the final rule adopts that revision. Finally, some minor, non-substantive revisions were made in the IFR to former 1978.105(b)(2), now at 1978.106(b), and additional language was added to that paragraph to clarify that all provisions of the ALJ's order, with the exception of any order for preliminary reinstatement, will be stayed upon the filing of a timely objection; the final rule adopts those revisions. A respondent may file a motion to stay OSHA's preliminary reinstatement order with the Office of Administrative Law Judges. However, such a motion will be granted only on the basis of exceptional circumstances. A stay of the Assistant Secretary's preliminary order of reinstatement would be appropriate only where the respondent can establish the necessary criteria for a stay, i.e. the respondent would suffer irreparable injury; the respondent is likely to succeed on the merits; a balancing of possible harms to the parties favors the respondent; and the public interest favors a stay.

Former section 1978.106, which became section 1978.107 in the IFR, was titled “Scope of rules; applicability of other rules; notice of hearing.” The title was changed to “Hearings,” the title assigned to similar sections in other OSHA whistleblower regulations. The final rule adopts those revisions. Other minor revisions have been made in the final rule.

Minor revisions were made to paragraph (a) in the IFR, which adopted the rules of practice and procedure and the rules of evidence for administrative hearings before the Office of Administrative Law Judges, codified at 29 CFR part 18; those revisions have been adopted here. However, in the final rule the reference to the ALJ rules of evidence has been deleted. This change is discussed below. Changes were also made in the IFR to paragraph (b) to conform to other OSHA whistleblower regulations. The requirements for the ALJ to set a hearing date within 7 days and to commence a hearing within 30 days were deleted, and language was added in the IFR to clarify that hearings will commence expeditiously and be conducted de novo and on the record. The language in the IFR is not intended to change case-handling practices. The final rule adopts those revisions.

Paragraph (b) has been modified in the final rule to add language providing that ALJs have broad discretion to limit discovery in order to expedite the hearing. This provision furthers an important goal of STAA—to have unlawfully terminated employees reinstated as quickly as possible.

Paragraph (c), which deals with situations in which both the complainant and the respondent object to the findings and/or preliminary order, was revised in the IFR, consistent with the changes made to paragraph (b), to remove language stating that hearings shall commence within 30 days of the last objection received. The final rule adopts those revisions.

Former paragraph (d), dealing with the ALJ's discretion to order the filing of prehearing statements, was deleted in the IFR as unnecessary; the final rule adopts that change.

A new paragraph (d) has been added to this section. It provides that in ALJ proceedings formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. Furthermore, the ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious. This evidence provision differs from the practice under the STAA IFR (section 1978.107(a)) and the original STAA rules (section 1978. 106(a)) to follow the ALJ rules of evidence in 29 CFR part 1918. The new provision is consistent with the Administrative Procedure Act, which provides at 5 U.S.C. 556(d): “* * * Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence * * *.” See also Federal Trade Commission v. Cement Institute, 333 U.S. 683, 705-06 (1948) (administrative agencies not restricted by rigid rules of evidence). Furthermore, it is inappropriate to apply the technical rules of evidence in Part 18 because complainants often appear pro se. Also, hearsay evidence is often appropriate in whistleblower cases, as there often is no relevant evidence other than hearsay to prove discriminatory intent. ALJs have the responsibility to determine the appropriate weight to be given to such evidence. For these reasons, the interests of determining all of the relevant facts are best served by not having strict evidentiary rules.

Former section 1978.107, titled “Parties,” was moved in the IFR to section 1978.108 with the new title “Role of Federal agencies.” The final rule adopts that change. This conforms to the terminology used in OSHA's other whistleblower regulations.

Former paragraphs (a), (b), and (c) in section 1978.107 were combined in section 1978.108(a)(1) in the IFR; that revision remains. The changes which were made to these paragraphs are not intended to be substantive, i.e., there is no intent to change the rights to party status currently afforded the Assistant Secretary, complainants, or respondents. The Assistant Secretary, represented by an attorney from the appropriate Regional Solicitor's Office, will still generally assume the role of prosecuting party in STAA whistleblower cases in which the respondent objects to the findings or preliminary order. This continues longstanding practice in STAA cases. The public interest generally requires the Assistant Secretary's continued participation in such matters. Relatively few private attorneys have developed adequate expertise in representing STAA whistleblower complainants, and complainants in the motor carrier industry have been more likely to proceed pro se than employees covered by OSHA's other whistleblower programs. Where the complainant, but not the respondent, objects to the findings or order, the regulations retain the Assistant Secretary's discretion to participate as a party or amicus curiae at any stage of the proceedings, including the right to petition for review of an ALJ decision.

Paragraph (a)(2) clarifies that if the Assistant Secretary assumes the role of prosecuting party in accordance with paragraph (a)(1), he or she may, upon written notice to the other parties, withdraw as the prosecuting party in the exercise of prosecutorial discretion. If the Assistant Secretary withdraws, the complainant will become the prosecuting party, and the ALJ will issue appropriate orders to regulate the course of future proceedings.

Paragraph (a)(3) provides that copies of documents in all cases must be sent to all parties, or, if represented by counsel, to them. If the Assistant Secretary is a party, documents shall be sent to the Regional Solicitor's Office representing the Assistant Secretary. This is a departure from the IFR, which also required distribution of documents to the Assistant Secretary and, where he or she was a party, to the Associate Solicitor for Occupational Safety and Health. Experience has shown that the additional distribution was not necessary. In the interest of saving time and resources the requirements for this additional distribution are being deleted.

Paragraph (b) states that the Federal Motor Carrier Safety Administration (FMCSA), an agency of the U.S. Department of Transportation, may participate in the proceedings as amicus curiae at its own discretion. This paragraph also permits the FMCSA to request copies of all documents, regardless of whether it is participating in the case. This provision mirrors similar language in the regulations implementing other OSHA-administered whistleblower laws.

The provisions formerly at section 1978.108, which described the manner in which STAA whistleblower cases would be captioned or titled, were deleted in the IFR. It is unnecessary to continue to include that material in these regulations.

This section sets forth the content of the decision and order of the ALJ, and includes the standards for finding a violation under STAA's whistleblower provision. Minor editorial revisions have been made in the final rule. References to the perception of protected activity have been deleted in the final rule. This concept is adequately covered by section 1978.104(e)(2)(ii) (employer knowledge shown by suspicion of protected activity). The title of this section conforms to the title assigned to similar provisions in other OSHA whistleblower regulations. Before the issuance of the IFR, section 1978.109 addressed decisions of both the ALJs and the ARB. In conformance with other OSHA whistleblower regulations, these two topics were separated by the IFR into individual sections; this separation remains in the final rule. Section 1978.109 covers only ALJ decisions and section 1978.110 addresses ARB decisions.

Former paragraph (a) was divided in the IFR among multiple paragraphs in this section and otherwise revised to reflect the parties' new burdens of proof and to conform more closely to the regulations implementing other OSHA-administered whistleblower laws. Those changes remain in the final rule. In litigation, the statutory burdens of proof require a complainant to prove that the alleged protected activity was a “contributing factor” in the alleged adverse action. If the complainant satisfies his or her burden, the employer, to escape liability, must prove by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity.

A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Clarke, supra, at *3. The complainant (whenever this term is used in this paragraph, it also refers to the Assistant Secretary) can succeed by providing either direct or indirect proof of contribution. Direct evidence is “smoking gun” evidence that conclusively connects the protected activity and the adverse action and does not rely upon inference. If the complainant does not produce direct evidence, he or she must proceed indirectly, or inferentially, by proving by a preponderance of the evidence that a motive prohibited by STAA was the true reason for the adverse action. One type of circumstantial evidence is evidence that discredits the respondent's proffered reasons for the adverse action, demonstrating instead that they were pretexts for retaliation. Id. Another type of circumstantial evidence is temporal proximity between the protected activity and the adverse action. Ferguson, supra, at *2. The respondent may avoid liability if it “demonstrates by clear and convincing evidence” that it would have taken the same adverse action in any event. Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. Clarke, supra, at *3. This burden of proof regimen supersedes the one in effect before the 2007 amendments to STAA. Id. at 7, n.1.

The requirements that the ALJ close the record within 30 days after the filing of the objection and issue a decision within 30 days after the close of the record are not in these rules because procedures for issuing decisions, including their timeliness, are addressed by the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges at 29 CFR 18.57.

Section 1978.109(c), which is similar to provisions in other OSHA whistleblower regulations, provides that the Assistant Secretary's determinations about when to proceed with an investigation and when to dismiss a complaint without completing an investigation are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, may not remand cases to the Assistant Secretary to conduct an investigation or make further factual findings. If there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if warranted by the facts and circumstances.

Section 1978.109(d)(1) now describes the relief the ALJ can award upon finding a violation and reflects the recent statutory amendments (see earlier discussion of section 1978.105(a)). The language of the IFR has been slightly modified to clarify the available remedies. The requirement to take appropriate affirmative action to abate the violation is separated from the other remedies, as it is in the STAA remedy provision, 49 U.S.C. 31105(b)(3)(A). Affirmative action to abate the violation, required by section 31105(b)(3)(A)(i), includes a variety of measures in addition to others in (3)(A), such as posting notices about STAA orders and rights, as well as expungement of adverse comments in a personnel record. Scott v. Roadway Express, Inc., No. 01-065, 2003 WL 21269144, at *1-2 (ARB May 29, 2003) (posting notices of STAA orders and rights); Pollock v. Continental Express, Nos. 07-073, 08-051, 2010 WL 1776974, at *9 (ARB Apr. 7, 2010) (expungement of adverse references). Other minor wording changes have been made. In addition, paragraph (d)(2) in this section requires the ALJ to issue an order denying the complaint if he or she determines that the respondent has not violated STAA.

Before the IFR, ALJs' decisions and orders were subject to automatic review by the ARB. These procedures were unique to STAA whistleblower cases and resulted in a heavy STAA caseload for the ARB. This made it more difficult for the ARB to promptly resolve the cases on its docket and delayed the resolution of STAA cases in which the parties were mutually satisfied with the ALJ's decision and order. Overall, requiring mandatory ARB review of every STAA whistleblower case is an inefficient use of limited resources. In conformance with the procedures used for the other whistleblower cases investigated by OSHA and adjudicated by ALJs, these regulations provide for ARB review of an ALJ's decision only if one or more of the parties to the case files a petition requesting such review. These procedures for review of ALJ decisions apply to all ALJ decisions issued on or after the effective date of the IFR, August 31, 2010. The final rule adopts these revisions.

In the IFR, former section 1978.109(b) was deleted, although much of its content was moved to paragraph (e); the final rule adopts those revisions. Section 1978.109(e), which borrows language from similar provisions in other OSHA whistleblower regulations, gives parties 14 days after the date of the ALJ's decision to file a petition for review with the ARB. If no petition for review is filed within that timeframe, the ALJ's decision is final and all portions of the order become effective. Paragraph (e), in addition to giving parties14 days to seek review before the ARB, clarifies that any orders relating to reinstatement will be effective immediately upon receipt of the decision by the respondent.

In the IFR, all of the provisions in former section 1978.109, which codified the automatic review process, primarily former paragraphs (c)(1) and (c)(2), were deleted. The content of former paragraph (c)(3), regarding the standard for ARB review of ALJ decisions, was moved to new section 1978.110(b). The content of former paragraph (c)(4), which required the ARB to issue an order denying the complaint if it determined that the respondent had not violated the law, was moved to section 1978.110(e). Former paragraph (c)(5), which required service of the ARB decision on all parties, became a part of section 1978.110(c). The final rule adopts all those revisions.

OSHA has revised the period for filing a timely petition for review with the ARB to 14 days rather than 10 business days. With this change, the final rule expresses the time for a petition for review in a way that is consistent with the other deadlines for filings before the ALJs and the ARB in the rule, which are also expressed in days rather than business days. This change also makes the final rule congruent with the 2009 amendments to Rule 6(a) of the Federal Rules of Civil Procedure and Rule 26(a) of the Federal Rules of Appellate Procedure, which govern computation of time before those tribunals and express filing deadlines as days rather than business days. Accordingly, the ALJ's order will become the final order of the Secretary 14 days after the date of the decision, rather than after 10 business days, unless a timely petition for review is filed. As a practical matter, this revision does not substantively alter the window of time for filing a petition for review before the ALJ's order becomes final.

This section is borrowed largely from existing regulations implementing other OSHA whistleblower laws. Minor editorial corrections have been made in the final rule. In accordance with the decision to discontinue automatic ARB review of ALJ decisions, paragraph (a) of this section gives the parties 14 days from the date of the ALJ's decision to file a petition for review with the ARB. If no timely petition for review is filed, the decision of the ALJ becomes the final decision of the Secretary, and is not subject to judicial review. Paragraph (a) also clarifies that the date of the postmark, fax, electronic communication transmittal, or hand-delivery will be deemed the date of filing; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. In its comments, NWC suggested that the filing period be extended from 10 business days to 30 days to make this section parallel to the provision in 1978.105(c), which allows for 30 days within which to file an objection. OSHA declines to extend the filing period to 30 days because the 14-day filing period is consistent with the practices and procedures followed in OSHA's other whistleblower programs. Furthermore, parties may file a motion for extension of time to appeal an ALJ's decision, and the ARB has discretion to grant such extensions. However, as explained above, OSHA has revised the period to petition for review of an ALJ decision to 14 days rather than 10 business days. As a practical matter, this revision does not substantively alter the window of time for filing a petition for review before the ALJ's order becomes final.

With regard to section 1978.110(a), NWC urged deletion of the provision that “[t]he parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections will ordinarily be deemed waived.” NWC commented that parties should be allowed to add additional grounds for review in subsequent briefs and that allowing parties to do so would further the goal of deciding cases on the merits. OSHA's inclusion of this provision is not intended to limit the circumstances in which parties can add additional grounds for review as a case progresses before the ARB, but rather the rules include this provision to put the public on notice of the possible consequences of failing to specify the basis of a petition to the ARB. OSHA recognizes that while the ARB has held in some instances that an exception not specifically urged may be deemed waived, the ARB also has found that the rules provide for exceptions to this general rule. See, e.g., Furland v. American Airlines, Inc., Nos. 09-102, 10-130, 2011 WL 3413364, at *7, n.5 (ARB Jul. 27, 2011), petition for review filed, (11th Cir. Oct. 3, 2011) (No. 11-14419-C) (where a complainant consistently made an argument throughout the administrative proceedings the argument was not waived simply because it appeared in the complainant's reply brief to the ARB rather than in the petition for review); Avlon v. American Express Co., No. 09-089, 2011 WL 4915756, at *4-5, n.1 (ARB Sept. 14, 2011) (consideration of an argument not specifically raised in complainant's petition for review is believed to be within the authority of the ARB, and parallel provisions in Sarbanes-Oxley whistleblower regulations do not mandate that the ARB must limit its review to ALJ conclusions assigned as error in the petition for review); Brookman v. Levi Strauss, No. 07-074, 2008 WL 7835844, at *5 (ARB Jul. 23, 2008) (concurring with the ALJ's findings despite Complainant's failure to specifically identify objections and invoke ARB review). However, recognizing that the interim final rule may have suggested too stringent a standard, the phrase “will ordinarily” has been replaced with “may.”

Consistent with the procedures for petitions for review under other OSHA-administered whistleblower laws, paragraph (b) provides that the ARB has discretion to accept or reject review in STAA whistleblower cases. Congress intended these whistleblower cases to be expedited, as reflected by the recent amendment to STAA providing for a hearing de novo in district court if the Secretary has not issued a final decision within 210 days of the filing of the complaint. Making review of STAA whistleblower cases discretionary may assist in furthering that goal.

The ARB has 30 days to decide whether to grant a petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. This section further provides that when the ARB accepts a petition for review, it will review the ALJ's factual determinations under the substantial evidence standard, a standard previously set forth in section 1978.109(c)(3) before the issuance of the IFR. If a timely petition for review is filed with the ARB, relief ordered by the ALJ is inoperative while the matter is pending before the ARB, except that orders of reinstatement will be effective pending review. Paragraph (b) does provide that in exceptional circumstances the ARB may grant a motion to stay an ALJ's order of reinstatement. A stay of a reinstatement order is only appropriate when the respondent can establish the necessary criteria for a stay, i.e., the respondent will suffer irreparable injury; the respondent is likely to succeed on the merits; a balancing of possible harms to the parties favors the respondent; and the public interest favors a stay.

Paragraph (c), which provides that the ARB will issue a final decision within 120 days of the conclusion of the ALJ hearing, was revised to state that the conclusion of the ALJ hearing will be deemed to be 14 days after the date of the decision of the ALJ, rather than after 10 business days, unless a motion for reconsideration has been filed with the ALJ in the interim. Like the revision to section 1978.110(a), explained above, this revision does not substantively alter the length of time before the ALJ hearing will be deemed to have been concluded. This paragraph further provides for the ARB's decision in all cases to be served on all parties, the Chief Administrative Law Judge, the Assistant Secretary, and the Associate Solicitor for Occupational Safety and Health.

Paragraph (d) describes the remedies the ARB can award if it concludes that the respondent has violated STAA's whistleblower provision (see earlier discussion of section 1978.109(d)(1)). In addition, under paragraph (e), if the ARB determines that the respondent has not violated STAA, it will issue an order denying the complaint. Paragraph (f) clarifies that the procedures for seeking review before the ARB apply to all cases in which ALJ decisions were issued on or after the effective date of the IFR, August 31, 2010.

This section provides procedures and time periods for the withdrawal of complaints, the withdrawal of findings and/or preliminary orders by the Assistant Secretary, the withdrawal of objections to findings and/or preliminary orders, and the withdrawal of petitions for review of ALJ decisions. It also provides for the approval of settlements at the investigative and adjudicative stages of the case. Minor editorial changes have been made in the final rule.

Paragraph (a) permits a complainant to withdraw orally or in writing his or her complaint to the Assistant Secretary, at any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order. The Assistant Secretary confirms in writing the complainant's desire to withdraw and will determine whether to approve the withdrawal. The Assistant Secretary will notify all parties if the withdrawal is approved. Paragraph (a) clarifies that complaints that are withdrawn pursuant to settlement agreements prior to the filing of objections must be approved in accordance with the settlement approval procedures in paragraph (d). In addition, paragraph (a) clarifies that the complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order. Paragraph (c) addresses situations in which parties seek to withdraw either objections to the Assistant Secretary's findings and/or preliminary order or petitions for review of ALJ decisions. Paragraph (c) provides that a party may withdraw objections to the Assistant Secretary's findings and/or preliminary order at any time before the findings and preliminary order become final by filing a written withdrawal with the ALJ. Similarly, if a case is on review with the ARB, a party may withdraw a petition for review of an ALJ's decision at any time before that decision becomes final by filing a written withdrawal with the ARB. The ALJ or the ARB, depending on where the case is pending, will determine whether to approve the withdrawal of the objections or the petition for review. Paragraph (c) clarifies that if the ALJ approves a request to withdraw objections to the Assistant Secretary's findings and/or preliminary order, and there are no other pending objections, the Assistant Secretary's findings and preliminary order will become the final order of the Secretary. Likewise, if the ARB approves a request to withdraw a petition for review of an ALJ decision, and there are no other pending petitions for review of that decision, the ALJ's decision will become the final order of the Secretary. Finally, paragraph (c) provides that if objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d).

Paragraph (d)(1) states that a case may be settled at the investigative stage if the Assistant Secretary, the complainant, and the respondent agree. The Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates his or her consent and achieves the consent of all three parties. Minor, non-substantive changes are being made to paragraph (d)(2). Paragraph (d)(3) is being deleted because the withdrawal of the Assistant Secretary as a party as a matter of prosecutorial discretion is adequately covered by section .107(a)(2). Paragraph (e), borrowing language from similar provisions in other OSHA whistleblower regulations, clarifies that settlements approved by the Assistant Secretary, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in federal district court pursuant to 49 U.S.C. 31105(e).

This section describes the statutory provisions for judicial review of decisions of the Secretary and, in cases where judicial review is sought, requires the ARB to submit the record of proceedings to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court. Non-substantive revisions to paragraphs (a), (b), and (c) were made in the IFR and are continued here. Minor editorial changes from the IFR were made in the final rule. In the final rule a reference to the transmission of the record to a court of appeals by an ALJ has been made because parties may file petitions for review of those decisions in the courts of appeals where they have previously requested review by the ARB and the ARB has denied review.

Former section 1978.112, which addressed postponement due to the pendency of proceedings in other forums, including grievance-arbitration proceedings under collective bargaining agreements, and deferral to the outcomes of such proceedings, was deleted in the IFR to conform to other OSHA whistleblower regulations, which do not contain similar provisions; that deletion remains. This is a non-substantive change. Postponement and deferral principles will still be applied in accordance with case law.

In the IFR, non-substantive revisions were made to this section, which describes the Secretary's power under STAA's whistleblower provision to obtain judicial enforcement of orders, including orders approving settlement agreements; the final rule adopts those revisions. Minor editorial corrections have been made in the final rule.

This section deals with the recent amendment to STAA, 49 U.S.C. 31105(c), allowing a complainant in a STAA whistleblower case to bring an action in district court for de novo review if there has been no final decision of the Secretary and 210 days have passed since the filing of the complaint and the delay was not due to the complainant's bad faith. Section 1978.114 has been drafted to reflect the Secretary's position that it would not be reasonable to construe the statute to permit a complainant to initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 210 days after the filing of the administrative complaint. In the Secretary's view, the purpose of the “kick-out” provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals. The regulations have been drafted in accordance with this position. Minor editorial corrections have been made in the final rule.

The IFR did not note that 49 U.S.C. 31105(c) guarantees the right to a jury trial at the request of either party in these cases. This rule notes that statutory provision.

In this section, OSHA eliminated the requirement that complainants provide the agency 15 days advance notice before filing a de novo complaint in district court. Instead, this section provides that within seven days after filing a complaint in district court, a complainant must provide a file-stamped copy of the complaint to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending. A copy of the complaint also must be provided to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. This provision is necessary to notify the agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed. The reference to the OSHA Regional Administrator in the IFR has been changed in the final rule to a reference to the OSHA official who issued the findings and/or preliminary order to reflect the possibility (not currently contemplated) of future organizational changes.

This change responds to NWC's comment that the 15-day advance notice requirement for filing a suit in district court should be eliminated because it inhibits complainants' access to federal courts. OSHA believes that a provision for notifying the agency of the district court complaint is necessary to avoid unnecessary expenditure of agency resources once a complainant has decided to remove the case to federal district court. OSHA believes that the revised provision adequately balances the complainant's interest in ready access to federal court and the agency's interest in receiving prompt notice that the complainant no longer wishes to continue with the administrative proceeding.

This section provides that in circumstances not contemplated by these rules or for good cause the ALJ or the ARB may, upon application and three days notice to the parties, waive any rule or issue such orders as justice or the administration of STAA's whistleblower provision requires.

In the IFR, OSHA deleted former section 1978.114, which provided that the time requirements imposed on the Secretary by these regulations are directory in nature and that a failure to meet those requirements did not invalidate any action by the Assistant Secretary or Secretary under STAA; that deletion remains. These principles are well-established in the case law, see, e.g., Roadway Express v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991), and this provision, which was unique to OSHA's STAA regulations, is unnecessary. The deletion of this provision is a non-substantive amendment. No significant change in STAA practices or procedures is intended.

This rule contains a reporting provision (filing a retaliation complaint, section 1978.103) which was previously reviewed and approved for use by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995). The assigned OMB control number is 1218-0236.

The notice and comment rulemaking procedures of Section 553 of the Administrative Procedure Act (“APA”) do not apply to “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). Part 1978 sets forth interpretive rules and rules of agency procedure and practice within the meaning of that section. Therefore, publication in the Federal Register of a notice of proposed rulemaking and request for comments was not required. Although part 1978 was not subject to the notice and comment procedures of the APA, the Assistant Secretary sought and considered comments to enable the agency to improve the rules by taking into account the concerns of interested persons.

Furthermore, because this rule is procedural and interpretive rather than substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be effective 30 days after publication in the Federal Register is inapplicable. The Assistant Secretary also finds good cause to provide an immediate effective date for this rule. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases. Furthermore, most of the provisions of this rule were in the IFR and have already been in effect since August 31, 2010.

The agency has concluded that this rule is not a “significant regulatory action” within the meaning of Executive Order 12866, reaffirmed by Executive Order 13563, because it is not likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, no regulatory impact analysis has been prepared.

Because no notice of proposed rulemaking was published, no statement is required under Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural and interpretive in nature and is thus not expected to have a significant economic impact. Finally, this rule does not have “federalism implications.” The rule does 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” and therefore is not subject to Executive Order 13132 (Federalism).

The agency has determined that the regulation will not have a significant economic impact on a substantial number of small entities. The regulation sets forth procedures and interpretations, many of which were necessitated by statutory amendments enacted by Congress. Additionally, the regulatory revisions are necessary for the sake of consistency with the regulatory provisions governing procedures under other whistleblower statutes administered by OSHA. Furthermore, no certification to this effect is required and no regulatory flexibility analysis is required because no proposed rule has been issued.

Accordingly, for the reasons set out in the preamble part 1978 of Title 29 of the Code of Federal Regulations is revised to read as follows:

The California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, Sacramento River, at Sacramento, CA. The Tower Drawbridge navigation span provides a vertical clearance of 30 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, as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position from 9:30 a.m. to 10:30 a.m. on September 9, 2012 to allow the community to participate in the Fleet Feet Event, Run To Remember 10K. This temporary deviation has been coordinated with waterway users. There are no scheduled river boat cruises or anticipated levee maintenance during this deviation period. No objections to the proposed temporary deviation were raised. Vessels that can transit the bridge, while in the closed-to-navigation position, may continue to do so at any time. In the event of an emergency the drawspan can be opened with 15 minutes advance notice.

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.

On April 12, 2012, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulation; Sturgeon Bay Ship Canal, Sturgeon Bay, WI, in the Federal Register (77 FR 21890). We did not receive any comments on the proposed rule. No public meeting was requested, and none was held.

This rule establishes drawbridge schedules following the construction of the new Maple-Oregon Street Bridge and the extensive rehabilitation of the existing Michigan Street Bridge. This final rule is expected to provide for the safe and efficient passage of vessels requiring drawbridge openings, as well as the efficient movement of vehicular traffic in Sturgeon Bay.

The Sturgeon Bay Ship Canal is approximately 8.6 miles long and provides a navigable connection between Lake Michigan and Green Bay. The area experiences a significant increase in vehicular and vessel traffic during the peak tourist and navigation season between Memorial Day and Labor Day each year. There are a total of three highway drawbridges across the waterway. The Michigan Street Bridge provides unlimited vertical clearance in the open position and 14 feet in the closed position. Maple-Oregon Bridge provides unlimited vertical clearance in the open position and 25 feet in the closed position. Bayview Bridge also provides unlimited vertical clearance in the open position and 42 feet in the closed position. Both Michigan Street and Maple-Oregon Bridges serve the downtown Sturgeon Bay area and are located approximately 750 feet apart on the canal.

A final rule was published on October 24, 2005 in the Federal Register (70 FR 61380) to allow for one opening per hour at the Michigan Street Bridge for recreational vessels while the Maple-Oregon Bridge was constructed and the Michigan Street Bridge was rehabilitated. The final rule also included a requirement to open at any time if 20 or more vessels gathered waiting for bridge openings. A temporary final rule was published on June 5, 2009 in the Federal Register (74 FR 26954), effective from June 1, 2009 to November 15, 2010 that essentially shifted the one bridge opening per hour at Michigan Street Bridge to the Maple-Oregon Bridge while the rehabilitation of Michigan Street was completed and the bridge was kept in the open-to-navigation position. With both Michigan Street and Maple-Oregon Bridges operational, the one opening per hour schedule for Michigan Street is considered too restrictive for vessels and could create an unsafe condition for vessel traffic that may be between the two closely located drawbridges while waiting for bridge openings.

The Coast Guard issued a notice of temporary deviation from regulations that was published on May 17, 2011 in the Federal Register (76 FR 28309) with request for comments to implement a test drawbridge schedule for Michigan Street and Maple-Oregon Street Bridges between May 27, 2011 and September 16, 2011. The test schedule required the Michigan Street Bridge to open for recreational vessels twice an hour, on the hour and half-hour, 24 hours a day, 7 days a week, and required the Maple-Oregon Bridge to open for recreational vessels twice an hour, on the quarter hour and three-quarter hour, during the same times. The test schedule also included a change to the current regulation that required the bridge to open if 20 or more vessels gathered at the bridge waiting for a scheduled opening. Local opinion was that an opening if at least 10 vessels were gathered would be a safer maximum number of vessels.

The Coast Guard coordinated with all local stakeholders before, during, and after the test drawbridge schedule and did not receive any adverse comments to the test schedule.

The Wisconsin Department of Transportation (WDOT) requested scheduled drawbridge openings for both Michigan Street and Maple-Oregon Bridges so vehicular traffic congestion would not develop on downtown Sturgeon Bay streets due to unscheduled bridge openings. This rule provides at least two bridge openings per hour for both Michigan Street and Maple-Oregon Street bridges, compared to the one bridge opening per hour that was in place during the construction and rehabilitation of the two highway bridges. It also retains the requirement during the test schedule to open if at least 10 vessels have accumulated at either bridge waiting for an opening. This rule also establishes the winter operating date for Maple-Oregon Bridge (January 1 through March 14) and rearranges the order of the three drawbridges to be presented geographically in the regulatory language.

The Coast Guard provided a 30-day comment period in conjunction with the NPRM and no comments were received. The regulatory text published in the NPRM has not changed in this final rule.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 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 Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order. This rule is expected to improve traffic congestion and safety in the vicinity of the drawbridge and does not exclude bridge openings for vessel traffic.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard did not receive any comments from the Small Business Administration on this rule. 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.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

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 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. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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 concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction. Under figure 2-1, paragraph (32)(e) of the Instruction an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

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

The Kansas City Southern Railroad has requested a temporary deviation from the operating schedule of the vertical lift span bridge across the Neches River at mile 19.5 in Beaumont, Texas. The vertical clearance of the bridge in the closed-to-navigation position is 13 feet above Mean High Water and 140 feet above Mean High Water in the open-to-navigation position.

In accordance with 33 CFR 117.971, the vertical lift span of the bridge is automated and normally not manned but will open on signal for the passage of vessels. This deviation allows the vertical lift span of the bridge to remain closed to navigation from 7 a.m. to 3 p.m. on Wednesday, August 8, 2012.

The closure is necessary in order to replace the south vertical lift joints on the bridge, which allow the bridge to be raised. This maintenance is essential for the continued operation of the bridge. Notices will be published in the Eighth Coast Guard District Local Notice to Mariners and will be broadcast via the Coast Guard Broadcast Notice to Mariners System.

Navigation on the waterway consists of commercial and recreational fishing vessels, small to medium crew boats, and small tugs with and without tows. No alternate routes are available for the passage of vessels; however, the closure was coordinated with waterway interests who have indicated that they will be able to adjust their operations around the proposed work schedule. Small vessels may pass under the bridge while in the closed-to-navigation position provided caution is exercised.

The bridge will be able to open manually in the event of an emergency, but it will take about one hour to do so.

Due to prior experience and coordination with waterway users, it has been determined that this closure will not have a significant effect on vessels that use the waterway.

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 New Jersey Department of Transportation requested a temporary deviation from the current operating regulations of the Route 30/Absecon Boulevard Bridge across Beach Thorofare, NJICW mile 67.2 and the US40-322 (Albany Avenue) across Inside Thorofare, NJICW mile 70.0, both at Atlantic City, NJ. The temporary deviation has been requested to ensure the safety of the heavy volumes of vehicular traffic that would be transiting over the bridges for the annual Air Show at Bader Field located within the city limits. The specific operating requirements for these drawbridges are normally planned for the third or fourth Wednesday of August, of every year. However, to celebrate the tenth anniversary of the 2012 Air Show and to accommodate for a larger crowd, Atlantic City—the host city, requested to reschedule the event to Friday, August 17, 2012. Under this temporary deviation, on Friday, August 17, 2012, the draws for both bridges will open every two hours on the hour from 10 a.m. until 3 p.m.; and need not open from 8:30 a.m. to 10 a.m. and from 3 p.m. to 6 p.m.

The current operating regulation for the Route 30/Absecon Boulevard Bridge across Beach Thorofare is outlined at 33 CFR 117.733(e) which requires that the bridge shall open on signal if at least four hours of notice is given; except that from April 1 through October 31, from 7 a.m. to 11 p.m., the draw need only open on the hour; on July 4, the draw need not open from 9:40 p.m. until 11:15 p.m. to accommodate the annual July 4th fireworks show. Should inclement weather prevent the fireworks event from taking place as planned, the draw need not open from 9:40 p.m. until 11:15 p.m. on July 5th to accommodate the annual July 4th fireworks show; on the third or fourth Wednesday of August the draw will open every two hours on the hour from 10 a.m. until 4 p.m. and need not open from 4 p.m. until 8 p.m. to accommodate the annual Air Show. In the closed position to vessels, the vertical clearance for this bascule-type bridge is 20 feet above mean high water.

The current operating regulation for the US40-322 (Albany Avenue) Bridge across Inside Thorofare is outlined at 33 CFR 117.733(f) shall open on signal except that year-round, from 11 p.m. to 7 a.m.; and from November 1 through March 31 from 3 p.m. to 11 p.m., the draw need only open if at least four hours notice is given; from June 1 through September 30, from 9 a.m. to 4 p.m. and from 6 p.m. to 9 p.m., the draw need only open on the hour and half hour; and from 4 p.m. to 6 p.m., the draw need not open; on July 4, the draw need not open from 9:40 p.m. until 11:15 p.m., to accommodate the annual July 4th fireworks show. Should inclement weather prevent the fireworks event from taking place as planned, the draw need not open from 9:40 p.m. until 11:15 p.m. on July 5th to accommodate the annual July 4th fireworks show; and on the third or fourth Wednesday of August, the draw will open every two hours on the hour from 10 a.m. until 4 p.m. and need not open from 4 p.m. until 8 p.m. to accommodate the annual Air Show. In the closed position to vessels, the vertical clearance for this bascule-type bridge is 10 feet above mean high water.

The majority of the vessels that transit the bridges this time of the year are recreational boats. Vessels able to pass through the bridges in the closed positions may do so at anytime. Both bridges will be able to open for emergencies. The Atlantic Ocean is an alternate route for vessels unable to pass through the bridges in closed positions. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

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

Background

This document makes technical corrections to Title 36, Code of Federal Regulations, Part 219—Planning, Subpart A—National Forest System Land Management Planning (36 CFR part 219, subpart A). One technical correction at 36 CFR 219.11(d)(4) concerns the wording describing the maximum size for openings that may be cut in one harvest operation. The wording should have said “maximum size for openings” instead of “maximize size for openings.”

At 36 CFR 219.17(b)(2) and (b)(3), the reference to “36 CFR part 209” should be “36 CFR part 219” and reference to “parts 200 to 209” should be “parts 200 to 299” and, therefore, technical corrections have been made to Title 36, Code of Federal Regulations, Part 219—Planning, Subpart A—National Forest System Land Management Planning (36 CFR part 219, subpart A), § 219.17(b)(2) and (b)(3). The correct reference in section 219.17(b)(2) and (3) is ” (36 CFR Part 219, published at 36 CFR Parts 200 to 299, revised as of July 1, 2010).”

In addition, corrections have been made to punctuation, hyphenation, and wording errors. The punctuation, hyphenation, and word corrections do not change the content of the rule. These specific changes are as follows:

In § 219.4, paragraph (a), the acronym “NEPA” is spelled out; in paragraph (a)(2), the term “Government” is capitalized; and in paragraph (a)(3)(b)(2)(iii), the word “to” has been added.

In § 219.6 paragraph (a)(1), the word “contained” has been removed from the first sentence.

In § 219.7 paragraph (c)(2)(viii), the word “which” has been changed to “that.”

In § 219.11 paragraph (d)(4) “maximize” has been changed to “maximum” and in paragraph (d)(4)(ii) “60-days” has been hyphenated.

In § 219.19 Definitions, changes have been made in definitions as follows: at “ Collaboration or collaborative process ” the comma has been removed from “October, 2007;” at “ Connectivity ” the term “long distance” has been hyphenated; at “ Cultural Services ” a comma was added after the term “experiences;” and at “ Source water protection areas ” “the” was added to “Environmental Protection Agency.”

As published, the final regulations contain errors which may be misleading and, therefore, need to be changed. Other changes are to make the document grammatically correct.

Accordingly, 36 CFR part 219 is corrected by making the following correcting amendments:

On June 30, 2009, MDE submitted formal revisions (#09-02) to its SIP. The SIP revisions consist of amendments to Regulation .03 Visible Emissions under (Code of Maryland administrative regulations) COMAR 26.11.10 Control of Iron and Steel Production Installations as they apply only to sintering plants. There is only one sintering plant located in Maryland. The one sintering plant affected by this regulation is located at Sparrows Point. Its particulate matter emissions are controlled by two wet (water) scrubbers each equipped with two fans. Under the current Maryland SIP, this sintering plant is subject to visible emissions and particulate matter standards. The current SIP requires that after demonstrating compliance with the applicable SIP particulate matter emission rate for sintering plants, a person may not cause or permit the discharge of visible fugitive emissions into the outdoor atmosphere, other than water in an uncombined form, which is greater than 10 percent opacity as averaged over any consecutive 6-minute period. The sintering plant's applicable SIP emission rate for particulate matter is 0.03 grains per dry standard cubic foot (gr/dscf).

The visible emissions standards for sintering plants found in Regulation .03 Visible Emissions under COMAR 26.11.10 Control of Iron and Steel Production Installations was originally established to allow the use of a Method 9 observation test as additional means of determining compliance, in addition to stack testing, with the sintering plant's applicable SIP particulate matter emission rate of .03 gr/dscf. In 2007, MDE amended Regulation .03 Visible Emissions under COMAR 26.11.10 to exempt the sintering plant at Sparrows Point from the visible emissions requirement and to establish open-ended requirements for the scrubbers' flow rates and pressure drops. Under the 2007 version of the regulation, MDE intended to establish specific flow rate and pressure drop parameters during a future stack test and to include them in the Title V permit for the sintering plant located at Sparrows Point. Upon further consideration, the MDE concurred with EPA that the SIP must stand on its own to protect the NAAQS, and that such open-ended requirements were not appropriate for inclusion in the SIP. Therefore, effective as of June 29, 2009, MDE again amended Regulation .03 under COMAR 26.11.10 to require that the two scrubbers of the sintering plant located at Sparrows Point meet specific flow rate and pressure drop parameters at all times under defined specific operating scenarios. During a stack test that demonstrated compliance with the SIP's applicable particulate matter emission rate of .03 gr/dscf, the flow rates and pressure drops of the two scrubbers were continuously monitored. Specific flow rate (in gallons per minute) and pressure drop (in inches of water) parameters for the scrubbers, established from the parameters monitored during the complying stack test, are now specified in the amended version of Regulation .03 under COMAR 26.11.10. Therefore, under the 2009 amended version of the regulation, the sintering plant at Sparrows Point is exempt from the visible emissions requirement of Regulation .03 under COMAR 26.11.10 when demonstrating compliance with the SIP's applicable particulate matter emission limit of 0.03 gr/dscf by continuously monitoring the flow rate and pressure drop parameters of the scrubbers and by providing that monitoring data to MDE. This monitoring data must demonstrate that the scrubbers are meeting the flow rate and pressure drop parameters which are now specifically included in the amended version of Regulation .03 under COMAR 26.11.10. Under Regulation .03 of COMAR 26.11.10, the exemption from the visible emissions requirement is contingent upon the sintering plant scrubbers operating in compliance with the conditions of subsection D. of the regulation which specifies the pressure drop and flow rate parameters established as previously described. The regulation also requires stack testing to be performed every 2.5 years.

Modeling has been performed in support of this SIP revision to demonstrate that the SIP's 0.03 gr/dscf applicable emission rate for particulate matter is protective of the NAAQS for PM 10 , and that protection is not dependent upon the visible emissions standard. A description of the modeling analyses conducted by MDE and the results are included in MDE's June 30, 2009 SIP revision submittal which is in the docket of this rulemaking. No SIP particulate matter emission rate relaxations are being approved as part of this SIP revision.

Regulation .03 Visible Emissions under COMAR 26.11.10, at subsection A. General, (2) Exceptions, paragraph (f) has been amended to exempt visible emissions from sintering plant scrubbers that are in compliance with the conditions of subsection D. of the regulation. Regulation .03 under COMAR 26.11.10 has been amended to revise subsection D. to require:

(1) The owner or operator of the sintering plant shall ensure continuous compliance with the .03 gr/dscf applicable particulate matter emission rate by maintaining the hourly average scrubber pressure drop and water flow rate to each of the two scrubbers (referred to as Scrubber North and Scrubber South) as follows:

(2) Scrubber Operating Conditions and Requirements.

(3) One or more of the scrubbers be in operation while the sintering plant is in operation.

(4) Compliance with the 0.03 gr/dscf emission limit requirement for particulate matter is achieved if at any time the hourly block average of scrubber pressure drop and flow rate are not less than the values in D(2) of this regulation.

(5) The scrubber pressure drop and flow rate shall be monitored by a continuous monitoring system and the monitoring system data made available to MDE upon request.

(6) Stack Testing Requirements.

(a) The affected sintering plant shall be stack tested for particulate matter not less than once each 2.5 years. During a compliance stack test, the scrubber pressure drop and flow rate shall be recorded as hourly block averages.

(b) If the scrubber pressure drop and water flow rate determined during a compliance stack test differ from the values in D(2) of this regulation, the owner or operator may request that MDE change to the values in D(2) of this regulation to reflect the revised values.

(c) Upon receiving such a request, the MDE may propose amending the regulation to include the revised values. Any amendment shall be submitted to the EPA as a SIP revision.

EPA has determined that these revisions to Regulation .03 Visible Emissions under COMAR 26.11.10 Control of Iron and Steel Production Installations as they apply to the sintering plant located at Sparrows Point are approvable because they provide for a continuous means of determining compliance with SIP's applicable particulate matter emission limit of 0.03 gr/dscf which has been demonstrated to protect and maintain the NAAQS for PM 10 .

EPA is approving the SIP revisions to Regulation .03 Visible Emissions under COMAR 26.11.10 submitted by MDE on June 30, 2009. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 25, 2012 without further notice unless EPA receives adverse comment by August 27, 2012. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 25, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action to approve a revision to Regulation .03 Visible Emissions under COMAR 26.11.10 Control of Iron and Steel Production Installations as they apply to sintering plants may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Therefore, 40 CFR part 52 is amended as follows:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On April 19, 2012, the Virginia Department of Environmental Quality (DEQ) submitted a revision to its State Implementation Plan (SIP).

The revision consists of the removal of four administrative regulations from SIP-approved regulations 9VAC5 Chapter 91 (Regulation for the Control of Motor Vehicle Emissions in the Northern Virginia Area) pertaining to the establishment of regulations (Regulation 5-91-40), hearings and proceedings (Regulation 5-91-60), variances (Regulation 5-91-80), and procedural information and guidance (Regulation 5-91-110). Virginia has already repealed these four regulations from the State-enforceable version of 9VAC5, Chapter 91. However, Virginia has indicated in its SIP revision submittal that the regulations being removed from Chapter 91 do exist in the State-enforceable 9VAC5 Chapter 170 entitled Regulation for General Administration.

EPA has determined that these administrative regulations need not be included in the Virginia SIP, as they describe internal State administrative procedures, and have no specific relationship to any pollutant control strategy under the CAA. While the CAA does require public hearings to be held on prospective SIP revisions, such requirements are found in 40 CFR 51.102. Similarly, in cases where Virginia grants variances of significant duration, the DEQ must submit such variances to EPA as separate SIP revisions.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code § 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

EPA is approving the removal of Regulations 5-91-40, 5-91-60, 5-91-80, and 5-91-110 from the Virginia SIP, as requested by the Virginia DEQ on April 19, 2012. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 25, 2012 without further notice unless EPA receives adverse comment by August 27, 2012. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 25, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking.

This action to remove four internal administrative requirements from the regulation for the control of motor vehicle emissions in the Northern Virginia Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Therefore, 40 CFR part 52 is amended 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.

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-2011-0829 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 September 25, 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-2011-0829, by one of the following methods:

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

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

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

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of November 9, 2011 (76 FR 69692) (FRL-9325-1), EPA issued a notice pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP 1E7918) by United Phosphorus, Inc., 630 Freedom Business Center, Suite 402, King of Prussia, PA 19406. The petition requested that 40 CFR 180.1195 be amended by modifying an exemption from the requirement of a tolerance for residues of titanium dioxide (CAS Reg. No. 13463-67-7) when used as an inert ingredient, UV-stabilizer, at no more than 5% in pesticide formulations containing the active ingredient napropamide. That notice referenced a summary of the petition prepared by United Phosphorus, Inc., the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

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 titanium dioxide including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with titanium dioxide 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 titanium dioxide 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.

A substantial proportion of the toxicity data provided in this unit has been taken from comprehensive reviews and publications from The International Agency for Research on Cancer (IARC), World Health Organization (WHO) and National Cancer Institute (NCI). The titanium dioxide acute toxicity studies show low toxicity near limit doses. Titanium dioxide is also not a skin sensitizer. A 28-day lung instillation studies demonstrated slight fibrogenic effects comparable to that of a nuisance dust. A 90-day lung instillation study showed statistically significant signs of inflammation immediately after exposure but they were absent after 1-month. Many subchronic and chronic oral toxicity studies were performed on different species including rats, mice, dogs, cats, rabbits and guinea pigs. The doses ranged up to 100,000 parts per million (ppm) (5,000 milligrams/kilograms/day (mg/kg/day)) with study durations up to 2 years. None of these studies showed mortality or adverse toxicological effects caused by titanium dioxide. No reproductive or developmental studies were available for review in the toxicity database. Mutagenicity studies including sister chromatid exchange assays, in vitro micronucleus assays, comet assays, reverse mutation tests and chromosome aberration test produced mixed results but overall these tests showed that titanium dioxide is not mutagenic. Titanium dioxide is not carcinogenic via the oral, intraperitoneal or subcutaneous routes of exposure in rats or mice; however, there is concern via the inhalation route. In inhalation studies, tumors present in the lungs are thought to have been a localized fibrogenic effect caused by overloading of the lungs with high concentrations of titanium dioxide particles over a prolonged period of time. The concentrations used in these studies are near limit dose levels. Actual environmentally anticipated exposures of titanium dioxide based on the use patterns of products that would contain titanium dioxide are orders of magnitude less than that allowed by the Occupational Safety and Health Administration's (OSHA) Permissible Exposure Limit (PEL). Specific information on the studies received and the nature of the adverse effects caused by titanium dioxide can be found at http://www.regulations.gov in the document “Titanium Dioxide (TiO 2 ). Risk Assessment to Support Proposed Amendment to Exemption from the Requirement of a Tolerance When used as an Inert Ingredient in Pesticide Formulations under 40 CFR 180.1195,” in docket ID number EPA-HQ-OPP-2011-0829.

The available toxicity studies on titanium dioxide via oral route of exposure clearly demonstrate lack of toxicity. The several studies in mice, rats, dogs, cats, rabbits and other species of varying durations do not indicate toxicity at very high doses (e.g., 50,000 ppm or 2,500 mg/kg/day dietary exposure for 2 years in rats). No end point of concern via oral route of exposure has been identified in the available database. Therefore, dietary exposure was not estimated. This conclusion is in agreement with the conclusion of the WHO Committee on Food Coloring Materials that no Acceptable Daily Intake (ADI) need be set for the use of titanium dioxide based on the range of acute, sub-acute and chronic toxicity assays, all showing low mammalian toxicity. Similarly, no significant toxicity of titanium dioxide is expected via the dermal route of exposure. The available inhalation studies indicate that the primary toxicity of titanium dioxide is due to deposition of the inhaled particles and also suggest equivocal evidence of carcinogenicity due to prolonged exposure to titanium dioxide particles. No direct exposure to titanium dioxide particles is expected in pesticide napropamide formulations (less than 5% in formulations).

1. Dietary exposure from food and feed uses and drinking water. In evaluating dietary exposure to titanium dioxide, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from titanium dioxide in food as follows:

An exposure assessment for titanium dioxide was not conducted because no endpoint of concern was identified in the database.

2. 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). Based on the use pattern provided by the registrant and use limitations/restrictions there are no residential uses and thus no residential exposures are expected.

3. 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 titanium dioxide to share a common mechanism of toxicity with any other substances, and titanium dioxide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that titanium dioxide 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 .

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 Food Quality Protection Act (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.

There were no significant hazards identified in the available data at levels at or below the limit dose of 1,000 mg/kg/day. Thus, due to its low potential hazard and the lack of a hazard endpoint, it was determined that a quantitative risk assessment using safety factors applied to a point of departure protective of an identified hazard endpoint is not appropriate for titanium dioxide. For the same reasons that a quantitative risk assessment based on a safety factor approach is not appropriate for titanium dioxide, an FQPA SF is not needed to protect the safety of infants and children.

Titanium dioxide has two exemptions from the requirement of a tolerance: pesticide formulations applied to growing crops, 40 CFR 180.920; and pesticide formulations applied to animals, 40 CFR 180.930. Titanium dioxide is also approved for use as a colorant in food (21 CFR 73.575), in drugs (21 CFR 73.1575), and in cosmetics (21 CFR 73.2575; 21 CFR 73.3126). There has also been a previous exemption from requirement of a tolerance for residues in or on growing crops, when used as an inert ingredient (UV protectant) in microencapsulated formulations of the insecticide lambda-cyhalothrin at no more than 3.0% by weight or the formulations (40 CFR 180.1195). There was also no aggregate risk assessments performed since there was no single exposure, dietary or drinking water endpoints of concern.

Taking into consideration all available information on titanium dioxide, EPA has determined that there is a reasonable certainty that no harm to any population subgroup, including infants and children, will result from aggregate exposure to titanium dioxide under reasonable foreseeable circumstances. Therefore, the establishment of an exemption from tolerance under 40 CFR 180.1195 for residues of titanium dioxide when used as an inert ingredient (UV stabilizer) in pesticide formulations of napropamide at no more than 5% of the product formulation is considered safe under FFDCA section 408.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

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 titanium dioxide.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.1195 for titanium dioxide (CAS Reg. No.13463-67-7) when used as an inert ingredient (UV-stabilizer) at no more than 5% in pesticide formulations containing the active ingredient napropamide in pesticide formulations.

This final rule establishes 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 Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

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

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

Therefore, 40 CFR chapter I is amended as follows:

If you wish to comment, you may submit your comments by one of several methods:

You may mail comments to Director (630), Bureau of Land Management, U.S. Department of the Interior, 1849 C St. NW., Washington, DC 20240, Attention: 1004-AE27;

You may deliver comments to U.S. Department of the Interior, Bureau of Land Management, 20 M St. SE., Room 2134LM, Attention: Regulatory Affairs, Washington, DC 20003; or

You may access and comment on the interim final rule at the Federal eRulemaking Portal by following the instructions at that site (see ADDRESSES ).

Written comments on the interim final rule should be specific, should be confined to issues pertinent to the interim final rule, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposal which the commenter is addressing.

The BLM need not consider, or include in the administrative record for the final rule, comments that the BLM receives after September 25, 2012 or comments delivered to an address other than those listed above.

Comments, including names, street addresses, and other contact information of respondents, will be available for public review at BLM's offices at the U.S. Department of the Interior, Bureau of Land Management, 20 M St. SE., Room 2134LM, Washington, DC 20003, during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except Federal holidays. They will also be available at the Federal eRulemaking Portal http://www.regulations.gov. Follow the instructions at this Web site.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

The BLM has responsibility for the collection of fees for placer and lode mining claims and mill and tunnel sites on Federal lands. During fiscal year (FY) 2011, claimants recorded 58,775 new claims and sites with the BLM. In addition, the BLM processed maintenance fee payments for 375,958 claims and sites. The BLM deposits the collected fees into a special fund, and Congress appropriates money to the BLM from the fund to pay for the administration of the Mining Law program, which includes mining claim recording and fee collection, processing grandfathered patent applications, processing applications for plans of operations, inspecting operations, and enforcing the regulations.

Since 1992, Congress has passed several laws requiring claimants to pay various fees when locating, recording, and maintaining mining claims or sites on Federal lands. This rule implements Section 430 of the Consolidated Appropriations Act, 2012 (the FY2012 Appropriations Act), Public Law 112-74, 125 Stat. 786, enacted on December 23, 2011, which amended 30 U.S.C. 28f.

The BLM is adopting this interim final rule solely to implement the requirements of Section 430 of the FY2012 Appropriations Act, which amended 30 U.S.C. 28f. The BLM is not making any other changes to the regulations at 43 CFR part 3830.

The Department of the Interior for good cause finds under 5 U.S.C. 553(b)(3)(B) that notice and public procedure for this rule are unnecessary and that this rule may properly take effect upon publication. The reasons are as follows:

• This rule merely codifies statutorily imposed procedural changes;

• The law precludes the BLM from exercising discretion as to the level of fees or when they are due;

• Publishing the regulations in final form gives the public notification of the change so that placer mining claim holders can correctly calculate the amount of the maintenance fee based on the acreage in their existing placer mining claims or when they locate new placer mining claims; and

• Publishing the regulations in final form gives time to placer mining claim holders whose claims are greater than 20 acres to reduce the size of their claims before September 1, 2012, if they do not wish to pay the adjusted fees.

The Department also determines that the exceptions under 5 U.S.C. 553(d) apply and there is good cause to place the rule into effect on the date of publication. First, the matters addressed in the rule are statutorily required. Second, the payments this rule affects are payable to the BLM at the time of initial recording and annually thereafter. Because claims and sites are continuously being recorded with the BLM, this interim final rule serves as notification to all placer mining claim holders that they must begin paying the newly established fees upon recordation.

Under previous law, initial and annual maintenance fee payments were the same amount for all placer claims, whether the placer mining claim was 20 acres or 160 acres (the maximum size allowed). This interim final rule specifies that for placer mining claims greater than 20 acres in size, the claimant must pay an additional fee for each 20 acres or portion thereof.

The fees under this rule are due for all existing placer mining claims, starting with the maintenance fee payment due on or before September 1, 2012, for the 2013 assessment year. For new placer mining claims, the rule is effective immediately and the fees under this rule are due when the placer claim is first recorded with the BLM as well as annually thereafter on or before September 1. For example, under this regulation, a claimant who records a new 66-acre placer mining claim must pay an initial maintenance fee of $560 ($140 for each of the first three 20-acre portions of the claim, plus $140 for the additional 6-acre portion thereof), as well as the $34 location fee (see 43 CFR 3830.21(a)(2)), and $15 processing fee (see 43 CFR 3000.12), for a total of $609. Each year, the annual maintenance fee for this hypothetical 66-acre placer claim would be $560.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. This interim final rule will not meet any of Executive Order 12866 criteria for significance as follows:

(a) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The economic analysis accompanying this rule indicates that the increase in fees for placer mining claims in excess of 20 acres will be approximately $8 million per year. The BLM makes this estimate on the basis of approximately 35,000 placer mining claims for which claimants paid maintenance fees at the end of FY 2011. Of these, approximately 21,000 placer mining claims exceeded 20 acres.

(b) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This rule only impacts the BLM's regulatory program by implementing a law that gives the BLM no discretion as to how to apply new fees for placer mining claims and will not affect actions taken or planned by another agency.

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

(d) This rule does not raise novel legal or policy issues. The rule simply implements a statute requiring fees for placer mining claims.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. This interim final rule has been developed in a manner consistent with these requirements.

The BLM certifies that this interim final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The rule will not have an impact because the fees paid by small entities will not change sufficiently to cause a significant economic impact. Using Internal Revenue Service data from 2008, the BLM estimates that the average placer claimant that will be affected by this rulemaking will pay an extra $800 annually. This amount equals about one per cent of a claimant's average annual income in 2008, which was $77,311. Moreover, this rule does not change the small miner maintenance fee waiver program, which further reduces any potential impact on small miners. A final Regulatory Flexibility Analysis is not required, and a Small Entity Compliance Guide is not required.

For the purposes of this section, a “small entity” is an individual, limited partnership, or small company, at “arm's length” from the control of any parent companies, with fewer than 500 employees or less than $5 million in revenue. This definition is consistent with Small Business Administration regulations at 13 CFR 121.201. Please see the economic analysis at the address in the ADDRESSES section of this rule for additional information.

This interim final rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.

• This rule does not have an annual effect on the economy of $100 million or more. The maintenance fee for placer mining claims is changing and will now be calculated based on the acreage of the claim. However, even with the additional maintenance fees collected for placer mining claims containing more than 20 acres, the annual effect on the economy will not meet or exceed $100 million. The total maintenance fee collected for placer mining claims that exceed 20 acres is being adjusted so that placer mining claims containing more acreage will bear a proportional amount of the administrative costs associated with the administration of all claims and sites;

• This rule does not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The changes implemented by this rule are likely to leave all other economic aspects of the BLM Mining Law program unaffected; and

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

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), the BLM finds that:

• This interim final rule does not “significantly or uniquely” affect small governments and does not impact small government entities in any regard. A Small Government Agency Plan is unnecessary.

• This rule does not produce a Federal mandate of $100 million or greater in any year.

The rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The changes in this rule would not require anything of any non-Federal governmental entity.

In accordance with Executive Order 12630, the BLM finds that the rule does not have takings implications. A takings implication assessment is not required. This rule does not substantially change BLM policy. Nothing in this rule constitutes a taking.

In accordance with Executive Order 12612, the BLM finds that this interim final rule does not have significant Federalism effects. A Federalism assessment is not required. This rule does not change the role of or responsibilities among Federal, State, and local governmental entities, nor does it relate to the structure and role of states or have direct, substantive, or significant effects on states.

In accordance with Executive Order 13175, the BLM finds that this interim final rule does not include policies that have tribal implications. Because this rule does not make significant substantive changes in the regulations and does not specifically involve Indian reservation lands (which are closed to the operation of the Mining Law), the BLM finds that the rule will have no implications for Indians, Indian tribes, and tribal governments.

In accordance with Executive Order 12988, the BLM finds that this interim final rule does not unduly burden the judicial system, and therefore meets the requirements of sections 3(a) and 3(b)(2) of the Order. The BLM consulted with the Department of the Interior's Office of the Solicitor throughout the drafting process.

The BLM has determined this interim final rule does not contain any new information collection requirements that the Office of Management and Budget (OMB) must approve under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The OMB has approved the information collection requirements in the regulations under OMB control number 1004-0114 that pertain to the payment of mining claim recordation and maintenance fees.

This interim final rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this rule is administrative in nature and is covered by a categorical exclusion. This rule will result in no new surface disturbing activities and therefore will have no effect on ecological or cultural resources. In promulgating this rule, the government is conducting routine and continuing government business of an administrative nature having limited context and intensity. Therefore, it is categorically excluded from environmental review under section 102(2)(C) of NEPA, pursuant to 43 CFR 46.205. The rule does not meet any of the extraordinary circumstances criteria for categorical exclusions listed at 43 CFR 46.215. Under Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental policies and procedures of the Department, the term “categorical exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect on procedures adopted by a Federal agency and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.

This interim final rule is not a significant energy action. It will not have an adverse effect on energy supplies. The rule pertains primarily to non-energy minerals, and does not impose requirements that are not statutory or impose new requirements.

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make this interim final rule easier to understand, including answers to questions such as the following:

1. Are the requirements in the regulations clearly stated?

2. Do the regulations contain technical language or jargon that interferes with their clarity?

3. Does the format of the regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

4. Would the regulations be easier to understand if they were divided into more (but shorter) sections?

5. Is the description of the regulations in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the proposed regulations? How could this description be more helpful in making the regulations easier to understand?

Please send any comments you have on the clarity of the regulations to the address as specified in the ADDRESSES section.

The principal author of this interim final rule is Sonia Santillan in the Solid Minerals Group assisted by the Division of Regulatory Affairs, Washington Office, BLM.

For the reasons stated in the preamble and under the authorities stated below, the BLM amends 43 CFR part 3830 as follows:

The Board's regulations at 49 CFR 1002.3 provide for an annual update of the Board's entire user-fee schedule. Fees are generally revised based on the cost study formula set forth at 49 CFR 1002.3(d). The fee changes adopted here, reflect a combination of the unchanged wage and salary costs from the 2011 User Fee Update decision; no change in publication costs; plus changes to the three Board overhead cost factors (two increased & one decreased from their comparable 2011 levels), resulting from the mechanical application of the update formula in 49 CFR 1002.3(d). Results from the formula application indicate that justified fee amounts in this 2012 update decision either remain unchanged (61 fee or sub-fee items) or increase (64 fee or sub-fee items) from their respective 2011 update levels. No new fee items are proposed in this proceeding. Therefore, the Board finds that notice and comment are unnecessary for this proceeding. See Regulations Governing Fees For Services—1990 Update, 7 I.C.C.2d 3 (1990); Regulations Governing Fees For Services—1991 Update, 8 I.C.C.2d 13 (1991); and Regulations Governing Fees For Services—1993 Update, 9 I.C.C.2d 855 (1993).

The Board concludes that the fee changes adopted here will not have a significant economic impact on a substantial number of small entities because the Board's regulations provide for waiver of filing fees for those entities that can make the required showing of financial hardship.

Additional information is contained in the Board's decision. To obtain a free copy of the full decision, visit the Board's Web site at http://www.stb.dot.gov or call the Board's Information Officer at (202) 245-0245. [Assistance for the hearing impaired is available through Federal Information Relay Services (FIRS): (800) 877-8339.]

For the reasons set forth in the preamble, title 49, chapter X, part 1002, of the Code of Federal Regulations is amended as follows:

Atlantic bluefin tuna (BFT) are managed under the dual authority of the Magnuson-Stevens Act and ATCA. The United States is an active member of ICCAT, which implements binding conservation and management recommendations for species including bluefin tuna. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NMFS.

ICCAT Recommendation 10-03 (Supplemental Recommendation by ICCAT concerning Western Atlantic Bluefin Tuna) established the total allowable catch for western Atlantic bluefin tuna for 2011 and 2012, including the United States' bluefin tuna quota. Through a final rule (76 FR 39019, July 5, 2011), NMFS implemented the United States' baseline quota and set domestic BFT fishing category quotas per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP) and as allowed in implementing regulations (71 FR 58058, October 2, 2006) (See Table 1, first column). The baseline quota and category subquotas are codified (See Table 1, second column) and will be effective until changed. Additionally, consistent with the Consolidated HMS FMP and NMFS implementing regulations, and as allowed by ICCAT recommendation, certain adjustments are made to the baseline quotas for underharvest from the previous year. This final action adjusts the quota as appropriate and allowable for the 2012 fishing year. Further background information, including the need for the 2012 BFT quota specifications, was provided in the preamble to the proposed rule (77 FR 15712, March 16, 2012) and is not repeated here.

NMFS determines the amount of BFT quota actually available for the year by adjusting the ICCAT-recommended baseline BFT quota for overharvest or underharvest from the previous fishing year and any accounting for dead discards. At the time the proposed rule was prepared, NMFS used the 2010 estimate of 122.3 mt as a proxy for potential 2012 dead discards because the BFT dead discard estimate for 2011 was not yet available. The more recent 2011 dead discard estimate, 145.2 mt, became available from the NMFS Southeast Fisheries Science Center in mid-June 2012. As anticipated and explained to the public at the proposed rule stage, NMFS is using the more recent dead discard estimate as a proxy in this final rule because it is the best available and most complete information NMFS currently has regarding dead discards.

Based on data available as of June 5, 2012, landings for 2011 totaled 738.5 mt. Adding the 2011 dead discard estimate (145.2 mt) results in a preliminary 2011 total catch of 883.7 mt, which is 159.9 mt less than the amount of quota (inclusive of dead discards) allowed under ICCAT Recommendation 10-03 (948.7 mt plus 94.9 mt of 2010 underharvest carried forward to 2011, totaling 1,043.6 mt). Thus, the underharvest for 2011 is approximately 160 mt. The current ICCAT recommendation limits the amount of underharvest the United States may carry forward to 2012 to 10 percent of the total U.S. quota or 94.9 mt.

As proposed, NMFS is accounting up front (i.e., at the beginning of the fishing year) for half of the expected dead discards for 2012, using the best available estimate of dead discards (2011), and deducting that portion directly from the Longline category subquota. This is the same approach that NMFS took for the final 2011 BFT quota specifications. Accounting for dead discards in the Longline category in this way may provide further incentive for pelagic longline fishermen to reduce interactions that can result in dead discards.

Regarding the unharvested 2011 BFT quota, NMFS had proposed to carry the 94.9 mt of available underharvest forward to 2012 and distribute that amount in the same manner as specified for 2011 (i.e., half to the Longline category and half to the Reserve category), and stated that any necessary adjustments to the 2012 specifications would be made in the final rule after considering updated 2011 landings information and the 2011 dead discard estimate. NMFS also stated that it could allocate the amount carried forward in another manner after considering domestic management needs for 2012.

During preparation of the final rule, NMFS closed the southern area incidental Longline bluefin tuna fishery on May 29, 2012 (77 FR 31546), and the northern area incidental Longline bluefin tuna fishery on June 30, 2012 (77 FR 38011), for the remainder of the year, because landings had met the codified subquotas for those areas. While pelagic longline fishing for swordfish and other target species may continue in the northern and southern Longline areas (with the separation at 31° N. lat., around the Georgia/Florida border), BFT may no longer be retained, possessed, or landed by longline vessels in those areas. Given that the incidental Longline fishery for bluefin tuna in these areas is over, accounting for these landings now is appropriate and allows for greater transparency than year-end accounting. The incidental Longline fishery for bluefin tuna in the Northeast Distant gear restricted area, an area far offshore the northeastern United States, remains open at this time under a separate, ICCAT-recommended allocation of 25 mt.

Taking all of this information into consideration, NMFS is deducting half of the estimated dead discards up front, is applying 76.2 of the 94.9 mt (the available underharvest) to the Longline category, and is maintaining the remaining underharvest (18.7 mt) in the Reserve category. Providing this amount to the Longline category adjusts the Longline South and Longline North subquotas to the amount actually taken in those areas this year, as detailed below. Consistent with determination criteria at § 635.27(a)(8), NMFS may allocate any portion of the Reserve category quota for inseason or annual adjustments to any other quota category. In the proposed rule, NMFS anticipated the possibility of such moderate alterations between the proposed and final amounts and distribution, based on updated information and management objectives.

The incidental Longline fishery for bluefin tuna in the Northeast Distant gear restricted area, an area far offshore the northeastern United States, remains open at this time under a separate, ICCAT-recommended allocation of 25 mt.

Specifically, NMFS in this final rule deducts half of the 2011 dead discard estimate of 145.2 mt (i.e., 72.6 mt) directly from the baseline Longline category quota of 74.8 mt and applies 76.2 of the 94.9 mt allowed to be carried forward to 2012 to the Longline category (i.e., 74.8 − 72.6 + 76.2 = 78.4 mt adjusted Longline subquota, not including the 25-mt allocation set aside by ICCAT for the Northeast Distant gear restricted area (NED)). NMFS adds the remainder of the 2011 underharvest that can be carried forward to 2012 (18.7 mt) to the Reserve category's baseline allocation of 23.1 mt, for an adjusted Reserve category quota of 41.8 mt for 2012. For the directed fishing categories (i.e., the Angling, General, Harpoon, Purse Seine categories) as well as the Trap category, NMFS is not adjusting the codified baseline BFT quotas and subquotas that were established in July 2011 (76 FR 39019, July 5, 2011).

Thus, in accordance with ICCAT Recommendation 10-03, the domestic category allocations established in the Consolidated HMS FMP, and regulations regarding annual adjustments at § 635.27(a)(10), NMFS establishes BFT quota specifications for the 2012 fishing year as follows, and as shown in the fifth column of Table 1): General category—435.1 mt; Harpoon category—36 mt; Purse Seine category—171.8 mt; Angling category—182 mt; Longline category—78.4 mt; and Trap category—0.9 mt. The Longline category quota of 78.4 mt is subdivided as follows: 27.6 mt to pelagic longline vessels landing BFT north of 31° N. latitude, and 50.8 mt to pelagic longline vessels landing BFT south of 31° N. latitude. NMFS accounts for landings under the 25-mt NED allocation separately from other Longline category landings. The amount allocated to the Reserve category for inseason adjustments, scientific research collection, potential overharvest in any category except the Purse Seine category, and potential quota transfers is 41.8 mt.

As described in the proposed rule, NMFS considers the deduction of half of the dead discard estimate from the Longline category a transitional approach from the method used for 2007 through 2010—in which the full dead discard estimate was deducted from the Longline category quota up front—that is appropriate to use again for 2012 as NMFS begins developing Amendment 7 to the Consolidated HMS FMP (Amendment 7) (77 FR 24161, April 23, 2012). Several potential management measures included in the Amendment 7 scoping document (see ADDRESSES ) are intended to reduce and account for bluefin tuna dead discards. After public scoping on Amendment 7 has been completed, NMFS will prepare a draft Environmental Impact Statement and proposed rule. Management of the BFT fisheries continues under the current Consolidated HMS FMP, implementing regulations, and ICCAT recommendations.

NMFS received five written comments on the proposed rule, and oral comments from the 13 participants who attended the two public hearings that NMFS held in Gloucester, MA, and Silver Spring, MD. Few of the comments NMFS received were focused specifically on the proposed quota specifications. The majority of those comments generally supported the proposed adjustment of the baseline BFT quota and subquotas. Below, NMFS summarizes and responds to all comments made specifically on the proposed rule received during the comment period. In addition, NMFS received comments on issues that were not part of this rulemaking. These comments are summarized under “Other Issues” below. Finally, NMFS addresses a comment received after the end of the comment period from the Center for Biological Diversity, the Plaintiff in an ongoing legal case regarding bluefin tuna management.

Comment 1: One commenter stated that NMFS' proposed methodology to allocate the quotas is appropriate because it is the same methodology used in 2011 and it allows for continued participation by all of the fishery's user groups. Another stated that NMFS should hold each category directly accountable for its own overharvests.

Response: The approach used for these final 2012 quota specifications is an appropriate continuation of the approach used in 2011 as a transition from the method used from 2007 through 2010. Changes in ICCAT's approach to western Atlantic bluefin tuna management in 2006 (i.e., discontinuation of the dead discard allowance and a new provision that the western BFT Total Allowable Catch include dead discards) have had implications for NMFS's domestic management of the fishery quota subcategories, as now the total of U.S. landings and dead discards is limited by the U.S. quota. Through this interim approach, NMFS is balancing the needs of the pelagic longline fishery to continue fishing for swordfish and Atlantic tunas with the needs of directed bluefin tuna fisheries participants. This action may provide some incentive for pelagic longline fishermen to reduce BFT interactions that can result in dead discards. Regarding the comment that NMFS should hold each subcategory accountable for its own dead discard, at this time there are no estimates of dead discards in other categories upon which to hold them accountable. NMFS is considering how best to modify data collection programs to provide dead discard estimates in the future in Amendment 7.

Comment 2: One commenter requested that if, based on final 2011 dead discard information, the amount of 2011 underharvest that the United States could carry forward to 2012 is less than the amount anticipated in the proposed rule (94.9 mt), NMFS should deduct the difference from the Longline category quota. Another commenter requested that NMFS take any difference from the Reserve category quota and asked that NMFS not give out extra quota for directed fisheries to land as that could result in an overharvest of the U.S. BFT quota.

Response: Because final landings and dead discard information for 2011 indicates that the amount of 2011 underharvest is greater than 94.9 mt, the full 94.9 will be available as anticipated in the proposed rule, and no adjustment is necessary. Therefore, the question of how to divide a reduced amount of underharvest between the Longline category and the Reserve is moot. However, after considering the updated 2011 BFT landings information and final dead discard estimate, NMFS has decided to apply 76.2 of the 94.9 mt (the available underharvest) to the Longline category and maintain the remainder (18.7 mt) in the Reserve category.

Comment 3: One commenter expressed concern that NMFS may, in order to stay within the ICCAT-recommended U.S. quota, close directed BFT fisheries in the event that unused quota, including the Reserve quota, is insufficient to account for Longline category landings overharvests and dead discards.

Response: The United States must account for dead discards, regardless of which fishery they occur in, to comply with ICCAT recommendations. It is important to consider that the BFT quota allocations in the Consolidated HMS FMP were based on historic landings and were established initially in 1992. Baseline quotas were modified in 1995 and 1997, but have remained the same since implementation of the 1999 FMP, when a separate discard allowance was provided for in the ICCAT BFT recommendation. Following ICCAT's elimination of the dead discard allowance and change to include dead discards within TACs in 2006, NMFS has not modified the allocation scheme to include dead discards in the baseline quotas. The United States has accounted for this mortality as part of the domestic specification calculation process for the last several years and reports dead discard estimates to ICCAT annually. Regarding the concern about potential closure, NMFS manages each fishing category to its landings quota for a given year, and it is highly unlikely that NMFS would close a fishery prior to the available quota for that category being met.

As indicated above and below, through Amendment 7, NMFS is considering how best to reduce and account for BFT dead discards and methods to improve reporting and monitoring of discards and landings.

Comment 4: NMFS should add to the Reserve category quota the shares of the two purse seine vessels that historically have participated in the BFT Purse Seine category fishery but that have recently been sold and are involved in non-tuna fisheries.

Response: The current BFT quota regulations, which implement the allocation shares set out in the Consolidated HMS FMP, require that NMFS make equal allocations of the available Purse Seine category quota to the Purse Seine category permit holders that request allocation for a given fishing year (§ 635.27(a)(4)(iii)). Thus, current regulations do not allow NMFS to initially allocate the Purse Seine category quota the way the commenter requests. Any change to the procedures for initially allocating Purse Seine category quota would require amendment to the Consolidated HMS FMP. NMFS is currently in the scoping process of Amendment 7, with comments on the scoping document (see ADDRESSES ) being accepted through July 15, 2012.

NMFS received comments on issues beyond the scope of this rulemaking, as outlined under seven subheadings below. NMFS has included several of these topics in the scoping document for Amendment 7. NMFS has also requested comments and/or suggestions on any of the Consolidated HMS FMP management objectives, as well as any potential management measures that may achieve those objectives so they can be incorporated for future public input. Potential management measures include, but are not limited to: revision of baseline quota allocations, reduction of and accounting for dead discards; new and/or modified time and area closures; and methods to improve reporting and monitoring of discards and landings. The potential measures listed in the scoping document are intended to be catalysts for scoping, and should not be viewed as the entire range of options NMFS is taking into consideration.

NMFS received various requests to consider catch data rather than just landings data to establish a more effective distribution of quota, enabling better quota utilization and fewer discards; to provide all categories with more quota if the Total Allowable Catch increases; and to reduce all BFT quotas by 50 percent.

NMFS received a request to use the term “regulatory discards” rather than “dead discards,” to provide a clear explanation of the dead discards estimation methodology that is understandable by laypersons, to require observer coverage and logbook use for all permit categories, and to calculate the anticipated reduction in dead discards from weak hook use in the Gulf of Mexico when considering a proxy for the 2011 dead discard estimate.

NMFS received a request to change all BFT permits from open access to limited access. The commenter stated that the open access nature of the fishery compounds the quota allocation issue.

NMFS received a comment that the Angling category landings are completely estimated and may be significantly incorrect, and a comment that NMFS should collect more information on all BFT (commercial and recreational), whether landed or discarded dead.

NMFS received a comment that the stock assessment science considered by ICCAT lags behind what the U.S. fishermen are seeing on the water, resulting in U.S. fishermen fighting among themselves while eastern Atlantic and Mediterranean BFT fishermen benefit. Some commenters stated that the U.S. delegation to ICCAT should renegotiate the BFT recommendation to increase quotas and the amount of underharvest allowed to be carried forward from one year to the next and should pursue two-year balancing periods for increased flexibility.

NMFS received requests to set the General category daily retention limit for June through August at four fish, to close the Longline category southern area BFT fishery as soon as the quota is met, and to carefully monitor pelagic longline activity on the east coast of Florida.

NMFS received a request to hold hearings in all areas, despite budget restraints, so that all affected fishermen have the opportunity to present their perspectives on any rule that may affect them. Another commenter requested that NMFS hold more meetings generally, with at least half being conducted in metropolitan areas rather than specifically in areas where participants profit from fisheries.

On May 4, 2012, 18 days after the comment period for this proposed rule ended, the Center for Biological Diversity (Center) submitted comments on the rule, including a request that NMFS supplement the Environmental Assessment prepared for the final 2011 quota rule (76 FR 39019, July 5, 2011) to consider information about the Deepwater Horizon/BP oil spill and alleged illegal fishing on the eastern Atlantic and Mediterranean BFT stock, due to the potential effects of mixing on western Atlantic BFT stock recovery. The Center claims that the proposed 2012 quota specifications would violate National Standards 1 and 2 by carrying forward any of the 2011 bluefin tuna underharvest to 2012 and allocating it to fishermen, because they argue that the proposed rule fails to prevent overfishing and use the best available science on the effects of the Deepwater Horizon/BP oil spill and the effects of mixing of eastern and western BFT stocks. Under National Standard 1, conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the U.S. fishing industry. Under National Standard 2, conservation and management measures shall be based upon the best scientific information available. In December 2011, the Center filed a complaint against the Secretary of Commerce, NOAA, and NMFS, regarding a November 2011 final rule implementing Adjustments to the Atlantic Bluefin Tuna General and Harpoon Category Regulations (76 FR 74003, November 30, 2011). The Center claims that the rule violated the Magnuson-Stevens Act, the National Environmental Policy Act, and the Administrative Procedure Act.

NMFS is not required under the Administrative Procedure Act to respond to comments received following the end of a rule's comment period. NMFS typically takes late comments “into consideration” without formally responding to those comments, but has the option of formally addressing such comment in a final rule. Nonetheless, NMFS will respond to the Center's comments. Below, NMFS addresses the portions of the Center's comment that are relevant to this rulemaking.

In 2010, in response to a petition to list BFT under the Endangered Species Act submitted by the Center, NMFS convened a status review team (Team) to review the status of western BFT. As described on pages 48 through 50 of the BFT Status Review Report (available at: www.nmfs.noaa.gov/stories/2011/05/docs/bft_srr_final.pdf ) the Team modeled the potential effect of the Deepwater Horizon/BP oil spill on the future abundance of BFT. The Team compared projections made by the ICCAT Standing Committee on Research and Statistics (SCRS) in 2010 with similar projections that assume the number of BFT yearlings (one-year-old fish) in 2011 would be reduced by 20 percent. The value of 20 percent was based on a report by the European Space Agency that suggested that about 20 percent of the spawning habitat was oiled. The Team noted that another study suggested that considerably less than 20 percent of the spawning habitat for western BFT was affected by the spill. However, given other factors, the Team regarded 20 percent as a reasonable upper bound for the mortality rate of BFT larvae owing to the spill event. The 20 percent reduction in the 2010 year-class (2011 yearlings) results in less than a 4 percent reduction in spawning biomass when future catches are within the range historically allowed under ICCAT management (i.e., 2,500 mt or less). This result is not surprising because BFT are a relatively long-lived species and the 2010 year class is only one of multiple year classes that will contribute to the spawning biomass in any given year. If the TAC remains less than 2,500 mt, as is expected, then the western BFT stock would be expected to continue to increase despite the Deepwater Horizon/BP oil spill; if however, catches are allowed to exceed 2,500 mt, then the western stock would be expected to decline and any reduction in the 2010 year class would hasten that decline.

The Team also conducted projections using the `MAST' model (Multistock Age-Structured Tag-Integrated assessment model), which uses electronic tagging data in an effort to account for intermixing between the eastern and western stocks, under the assumption that future catches in the western Atlantic would be 1,800 mt and future catches in the east would be 13,500 mt (slightly greater than allowed by the current management plans). The results of these modeling projections were very similar to those above. In this case, a 20-percent reduction in the 2010 year-class would be projected to cause only a 3-percent reduction in spawning biomass.

The Team also considered the potential impacts of scenarios in which 20 percent of the adult BFT were also killed in 2010, in which case the spawning biomass would be immediately reduced by 20 percent, which might lead to additional reductions in the 2011 and subsequent year-classes (relative to what they would have been in the absence of the spill), and in turn, reductions in future spawning biomass levels. The Team noted, however, the absence of any evidence that any portion of adults were actually deleteriously affected, and noted that all of the electronically-tagged bluefin tuna that were known to have spent time in the Gulf of Mexico during the actual spill event (8 fish) survived long after leaving the Gulf of Mexico.

In the 2011 SCRS Executive Summary (Section 8.5 of the recent ICCAT biennial report, which can be found at www.iccat.int/Documents/BienRep/REP_EN_10-11_II_2.pdf ), the SCRS acknowledges that the conclusions of the 2010 assessment do not capture the full degree of uncertainty in the assessments and projections, and that an important factor contributing to uncertainty is mixing between fish of eastern and western origin. Limited analyses were conducted of the two stocks with mixing in 2008, but little new information was available in 2010. The SCRS states that management actions taken in the eastern Atlantic and Mediterranean are likely to influence recovery in the western Atlantic, because even small rates of mixing from East to West can have significant effects on the West due to the fact that the Eastern plus Mediterranean resource is much larger than that of the West. However, the extent of mixing is currently unknown, and is currently the subject of significant research.

Regarding impacts of the Deepwater Horizon/BP oil spill, NMFS considers the information summarized in the BFT Status Review to be the best scientific information of the effect of the Deepwater Horizon/BP oil spill on bluefin tuna on which to base management actions at this time and no additional information is available upon which to change that basis. Regarding catch levels in the eastern Atlantic and Mediterranean on western Atlantic BFT, NMFS considers the information summarized in the reports of the SCRS to be the best scientific information to serve as the basis of management actions at this time, both internationally and domestically, but notes that a new scientific paper on the MAST model is available. NMFS expects this new information will be reviewed and incorporated by the SCRS in the upcoming 2012 BFT stock assessments, as appropriate. Until that time, however, the SCRS assessments remain the best scientific information available.

NMFS continues to rely upon the 2010 SCRS stock assessment as the best scientific information available. That stock assessment was subject to rigorous analysis and review by a panel of experts from participating ICCAT countries. A new stock assessment is expected in fall 2012, along with a new ICCAT recommendation on total allowable catch and country quotas and other bluefin conservation and management measures. The newly available MAST that addresses mixing of eastern and western Atlantic bluefin tuna stocks will be reviewed and incorporated as appropriate in that upcoming assessment process. Thus, while the MAST model is available for review, it has not been subject to the rigorous analysis and review by ICCAT's panel of experts. Therefore, NMFS' actions in implementing the ICCAT quota consistent with the ICCAT Rebuilding Program and the 2010 stock assessment are consistent with the Magnuson-Stevens Act's National Standard 2 to utilize the best available scientific information.

The 2010 SCRS stock assessment analyzed the status of the western Atlantic bluefin tuna stock using two recruitment scenarios: a “high recruitment” and “low recruitment” scenario. SCRS concluded that there was no basis for choosing one scenario over the other (i.e., both scenarios are equally likely). Under the low recruitment scenario, the stock is considered rebuilt, overfishing is not occurring, and a total allowable catch of up to 2,500 metric tons would maintain the stock biomass above the level that can support MSY. Under the high recruitment scenario, the stock remains overfished with overfishing occurring and will not rebuild by the end of 2018 (under the 20-year rebuilding period that began in 1999) even with no catch. The SCRS indicated that a total allowable catch of 1,800 metric tons would allow the stock to grow under both recruitment scenarios. ICCAT adopted a total allowable catch of 1,750 mt, which was a reduction of 50 mt from the TAC for 2011.

The quotas as implemented remain consistent with the ICCAT Rebuilding Program that was adopted domestically in the rule implementing the 1999 FMP and that was continued in regulations under the 2006 Consolidated HMS FMP. The main objective of the ICCAT Rebuilding Program is to maintain western Atlantic bluefin tuna populations at levels that will support MSY. Therefore, NMFS' actions are consistent with National Standard 1 of the Magnuson-Stevens Act, which states that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield (OY) for the fishery.

NMFS maintains that the carryforward of underhavest is consistent with ICCAT Recommendation 10-03, ATCA, and the Magnuson-Stevens Act. Beginning with the 2011 fishing year, ICCAT Recommendation 10-03 limits the amount of underharvest that may be carried forward from one year to the next to no more than 10 percent of a country's quota. This amount was reduced from the 50-percent limit in the 2006 ICCAT western Atlantic BFT recommendation (06-06), which was in effect for 2007 through 2010. Prior to 2007, a country could carry forward the full amount of its underharvest to the following year. The United States has supported ICCAT's efforts to control quota stockpiling as part of bluefin tuna management recommendations, such as establishing limits on the amount of unused quota that can be carried from one year to the next, for fairness and conservation reasons.

Under ATCA, NMFS is authorized to promulgate such regulations as may be necessary and appropriate to carry out ICCAT recommendations. Under the Magnuson-Stevens Act (16 U.S.C. 1854(g)(1)(D)), NMFS is required to provide U.S. fishing vessels with “a reasonable opportunity to harvest” any allocation or quota to which the United States has agreed under ICCAT. To meet the multiple goals for the BFT fisheries, NMFS considers the importance of all of the national standards when making fishery management decisions, including those intended to provide reasonable fishing opportunities to a wide range of users and gear types, coastwide, throughout the calendar year.

The NMFS Assistant Administrator has determined that this final rule is consistent with the Magnuson-Stevens Act, ATCA, and other applicable law, and is necessary to achieve domestic management objectives under the Consolidated HMS FMP.

This final rule is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.

The Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

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 shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall 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, NMFS has prepared a brochure summarizing fishery information and regulations for Atlantic tuna fisheries for 2012. This brochure also serves as the small entity compliance guide. Copies of the compliance guide are available from NMFS (see ADDRESSES ).

The spiny lobster fishery of the Gulf of Mexico (Gulf) and the South Atlantic is managed under the FMP. The FMP was prepared by the Councils and implemented through regulations at 50 CFR parts 622 and 640 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

A 2009 ESA biological opinion on the continued authorization of the spiny lobster fishery contained specific terms and conditions required to implement the prescribed reasonable and prudent measures and requires NMFS and the Councils to work together to protect areas of staghorn and elkhorn coral. This final rule addresses the required measure to create new or expand existing closed areas for lobster trap fishing where colonies of these threatened species are present.

On September 19, 2011, NMFS published a notice of intent to prepare a supplemental environmental impact statement for Amendment 11 and requested public comment (76 FR 57958). On April 27, 2012, NMFS published a notice of availability for Amendment 11 and requested public comment (77 FR 25116). On May 15, 2012, NMFS published a proposed rule for Amendment 11 and requested comment (77 FR 28560). The proposed rule and Amendment 11 outline the rationale for the action contained in this final rule. A summary of the action being implemented by this final rule is provided below.

This final rule prohibits spiny lobster trap fishing in 60 closed areas that cover a total of 5.9 mi 2 (15.3 km 2 ), distributed throughout the South Atlantic EEZ off the Florida Keys. These areas were chosen to protect threatended coral colonies with high conservation value and areas of high coral density. The closed areas meet the applicable requirements of the 2009 ESA biological opinion.

NMFS received five public comment submissions on Amendment 11 and the proposed rule, including three comments from individuals. Two Federal agencies stated they had no comment on the rule. Specific comments related to the actions contained in Amendment 11 and the proposed rule, as well as NMFS' respective responses, are summarized below.

Comment 1: Lobster trapping destroys reefs and should be prohibited.

Response: Amendment 11 does not address the general use of traps in the lobster fishery. The purpose of Amendment 11 is to implement the specific terms and conditions of the 2009 ESA biological opinion, one of which is to create new or expand existing closed areas to protect elkhorn and staghorn coral. The purpose of this final rule is to implement Amendment 11 and is not intended to address all possible management measures for the lobster fishery as a whole. The prohibition of lobster trap fishing in the 60 areas implemented through Amendment 11 will help protect reefs in the designated areas. As explained in Amendment 11, these areas were selected by identifying elkhorn and staghorn coral colonies and applying six general criteria to choose the areas that will provide the greatest benefit. In consultation with various stakeholders, NMFS and the Councils selected areas to be closed to lobster trap fishing that protect threatened coral colonies with high conservation value and areas of high coral density.

Comment 2: Closing areas to lobster trap fishing is long overdue.

Response: The measures contained in this final rule were developed to meet specific terms and conditions of the 2009 ESA biological opinion. NMFS and the Councils gathered data on identified elkhorn and staghorn coral colonies, then worked with fishermen, scientists, and managers to select areas to close to lobster trap fishing. This colloborative and deliberative process took time, but is intended to ensure that the areas selected will protect elkhorn and staghorn coral with the highest conservation value without overly restricting access to lobster fishing areas.

The Regional Administrator, Southeast Region, NMFS has determined that this final rule is necessary for the conservation and management of protected species described within Amendment 11, and is consistent with the FMP, the 2009 ESA biological opinion, the Magnuson-Stevens Act, and other applicable law.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here.

No substantive comments were received on the certification provided in the proposed rule (77 FR 28560, May 15, 2012). No changes to the final rule were made in response to public comments. As a result, a final regulatory flexibility analysis was not required and none was prepared.

For the reasons set out in the preamble, 50 CFR part 640 is amended as follows:

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

The 2012 initial total allowable catch (ITAC) of squid in the BSAI was established as 361 metric tons (mt) by the final 2012 and 2013 harvest specifications for groundfish of the BSAI (77 FR 10669, February 23, 2012). In accordance with § 679.20(a)(3) the Regional Administrator, Alaska Region, NMFS, has reviewed the most current available data and finds that the ITAC for squid in the BSAI needs to be supplemented from the non-specified reserve in order to promote efficiency in the utilization of fishery resources in the BSAI and allow fishing operations to continue.

Therefore, in accordance with § 679.20(b)(3), NMFS apportions from the non-specified reserve of groundfish 64 mt to the squid ITAC in the BSAI. This apportionment is consistent with § 679.20(b)(1)(i) and does not result in overfishing of a target species because the revised ITAC is equal to or less than the specifications of the acceptable biological catch in the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012).

The harvest specification for the 2012 ITAC included in the harvest specifications for groundfish in the BSAI is revised as follows: 425 mt for squid in the BSAI.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and 679.20(b)(3)(iii)(A) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the apportionment of the non-specified reserves of groundfish to the squid fishery in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of these fisheries, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 23, 2012.

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

Under § 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action (see ADDRESSES ) until August 8, 2012.

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