The Board has been considering for several years changes to its regulations governing how jurisdiction is established over MSPB appeals. On June 7, 2012, the Board proposed amendments to 5 CFR 1201.56. 77 FR 33663. In that proposed rule, the Board noted that 5 CFR 1201.56 is in conflict with a significant body of Board case law holding that certain jurisdictional elements may be established by making nonfrivolous allegations. The Board therefore proposed to amend this regulation to allow the use of nonfrivolous allegations to establish certain jurisdictional elements.

On October 12, 2012, after receiving numerous thoughtful comments concerning the proposed rule, the Board withdrew its proposed amendments to 5 CFR 1201.56 in order to reconsider the matter. 77 FR 62350. The Board thereafter directed the MSPB regulations working group to thoroughly reevaluate the Board's regulations relating to the establishment of jurisdiction. The MSPB regulations working group developed four options (A-D) and on November 8, 2013, the Board published a request for public comments in the Federal Register . 78 FR 67076.

On April 3, 2014, after considering each of the four options developed by the MSPB regulations working group and comments from the public, the Board published a proposed rule. 79 FR 18658. This proposed rule included a section-by-section analysis of the proposed amendments to the Board's regulations.

In response to publication of the proposed rule, the MSPB received 104 pages of comments from 19 commenters. These comments are available for review by the public at: www.mspb.gov/regulatoryreview/index.htm. As explained below, the Board carefully considered all public comments and has decided to adopt the proposed rule as final with several relatively minor changes.

A commenter criticized the MSPB for failing to explain in the proposed rule why it had rejected the other options (A, C, and D). This commenter further suggested that the proposed rule therefore would not be entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984) (setting forth the legal test for determining if a court should grant deference to a Federal agency's interpretation of a statute which it administers).

The Board appreciates the commenter's observation. The Board did indeed consider all options, A-D. The Board used the MSPB regulations working group (a committee of seasoned MSPB employees formed for the accomplishment of this important task) to carefully review and present options for the Board's consideration. The options initially developed by the regulations working group were presented to the Board and published for public comment in the Federal Register on November 8, 2013. Following several months of additional review by the regulations working group, the options and public comments were presented to the Board Members for a decision regarding how to proceed. Following extensive review, the Board Members unanimously selected a revised option B as the best choice and published it as a proposed rule on April 3, 2014.

The Board Members selected revised option B because it was largely consistent with current precedent and would clarify certain matters without requiring potentially disruptive changes that, in the end, would contribute little to the transparency and efficiency of MSPB adjudications. For these reasons, the Board Members also believed that option B was much less likely than options C and D to be successfully challenged on appeal. Finally, the Board determined that option B was unlikely to cause possible unintended consequences or process disruption that would adversely affect the parties who appear before the Board. Thus, in selecting option B, the Board decided that it was the best option for all parties concerned, including pro se and represented appellants, agencies, unions, attorneys, and the MSPB itself.

Option A set forth a general framework for jurisdictional determinations and informed the parties of only the general rules the Board follows in allocating burdens of proof. This option also stressed the important role that administrative judges play in explaining applicable burdens of proof and requirements for establishing MSPB jurisdiction. As to the latter point, option B likewise envisions an important role for administrative judges. The Board declined to adopt option A because this option, while consistent with current law and practice, included minimal additional information but not the helpful information contained in option B. Therefore, option A did not satisfy the Board's intention to make the Board's regulations more comprehensive and user-friendly.

The Board Members also carefully considered options C and D but decided against adopting them for several reasons. First, as noted above, the Board determined that the numerous major changes suggested in options C and D would change the current scheme in a manner inconsistent with long-standing precedent and procedures without offering any real advantage to the Board or MSPB litigants. The Board also was concerned that adoption of the more radical changes in these two options might not be accorded Chevron deference and that the lack of any real advantage to options C and D made running such a risk unappealing.

The Board Members thus chose the option that they believed would most efficiently serve the Board's critical mission of adjudicating appeals. In addition, the Board, as the promulgator of these regulations, has considerable discretion regarding, and is particularly well-suited to speak to, its intent in adopting these regulations and thus is entitled to Chevron deference as to its interpretation of these regulations. See, e.g., Reizenstein v. Shinseki, 583 F.3d 1331, 1335 (Fed. Cir. 2009); Gose v. U.S. Postal Service, 451 F.3d 831, 837 (Fed. Cir. 2006).

Finally, the MSPB would further note that other commenters, such as the Office of Personnel Management (OPM), lauded the careful consideration exhibited by the Board and had no significant objection to the Board's selection of option B.

A commenter expressed the concern that new section 1201.57 would improperly bar appellants from raising the “principles” embodied in affirmative defenses in individual right of action (IRA), Veterans Employment Opportunities Act of 1998 (VEOA), and Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) appeals as required under 5 U.S.C. 7701(c)(2).

This commenter chiefly relies upon a nonprecedential Board decision ( Robinson v. Department of Housing and Urban Development, MSPB Docket No. CH-3330-11-0845-I-1, 119 M.S.P.R. 21 (Table), Nonprecedential Final Order (Dec. 26, 2012)), that appears to state that an affirmative defense under 5 U.S.C. 7701(c)(2) may be raised in a VEOA appeal. Such a holding is, however, inconsistent with longstanding Board precedent. Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 12 (2001) (in a VEOA appeal the Board cannot consider a claim of prohibited discrimination under 5 U.S.C. 2302(b)(1) because VEOA does not grant the Board the authority to consider claims for violations of laws other than veterans' preference rules). Thus, the Board will not amend the proposed rule as suggested by this commenter.

A commenter expressed concern regarding the clarity of MSPB regulations, especially for pro se litigants and inexperienced counsel. The commenter requested that the Board explain in the regulations how a nonfrivolous allegation of jurisdiction under oath or penalty of perjury is done. This commenter also suggested that the MSPB redraft the proposed definitions related to jurisdiction in section 1201.4 and include examples illustrating how an appellant can establish MSPB jurisdiction by making nonfrivolous allegations. The commenter also suggested that such examples should address how to establish MSPB jurisdiction over constructive adverse actions and IRA appeals.

While we are cognizant that the regulations contain legal concepts that may be complex and difficult to understand, especially for pro se litigants, the complexity of the regulations is a product of the complexity of the law itself. The Board has found that attempting to clarify some concepts by restating them in plain English, or by providing illustrative examples of them, may create a misleading or incomplete definition of the concept. In particular, providing examples of some of the circumstances that could support jurisdiction over constructive action appeals raises a danger that they may limit the circumstances that will be described by pro se appellants to establish jurisdiction. Furthermore, the statement in the regulation is not intended to be a detailed substantive description of an appellant's burden in a particular type of appeal. Rather, the regulations generally inform the reader that the appellant is expected to provide specific factual allegations that describe a matter within the Board's jurisdiction. Under court and Board precedent, the Board already expects that MSPB administrative judges will fully inform an appellant with specificity of his or her burden of proving the claim, the burden of going forward with the evidence, and the types of evidence necessary to make a nonfrivolous allegation. Burgess v. Merit Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). In addition, the statement that the allegations “generally” should be under oath or penalty of perjury is not an absolute evidentiary requirement. Where appropriate, the Board may still find a nonfrivolous allegation of jurisdiction based solely upon the documentation in the appeal file without relying on a verified factual statement from the appellant. Furthermore, making a statement under penalty of perjury is not a significant hurdle. For example, in cases filed using the Board's e-Appeal Online system ( https://e-appeal.mspb.gov ), the appellant can easily meet it by merely checking a box in the initial appeal to verify under penalty of perjury that the information being asserted on the form is true and correct, based on the appellant's information and belief.

In response to sections 1201.56(d) and 1201.57(e), which require the MSPB administrative judge to provide the parties with information relating to the requirements for establishing jurisdiction and other relevant information, a commenter expressed a concern that show cause orders issued by administrative judges are generally not tailored to the facts of the particular appeal or written in plain and easily understood language.

Administrative judges frequently must issue jurisdictional orders that provide complex legal information early in the processing of a case, when they still have only a partial understanding of the factual basis of the appeal. As a result, the orders by necessity often must be general and cannot be tailored to the specific appeal. In addition, as with these regulations, it often is not possible to define the applicable jurisdictional standards with precision, while still using plain English. The administrative judges, however, are expected to provide further explanation of the Board's jurisdictional standard in appropriate cases. See Parker v. Department of Housing and Urban Development, 106 M.S.P.R. 329, ¶ 7 (2007) (while the general statement on jurisdiction in the acknowledgment order was appropriate when it was issued, the appellant's reply necessitated an additional show cause order setting forth a more explicit explanation about the evidence and arguments he would need to present to nonfrivolously allege that his appeal fell within the Board's jurisdiction).

A commenter suggested that the Board include a provision in its regulations setting forth an agency's responsibility to disclose relevant information to an appellant when an issue of jurisdiction or timeliness is raised in a show cause order.

The Board agrees with the commenter that an agency is obligated to disclose information relevant to the issue of jurisdiction. This obligation has already been recognized in MSPB precedent, and appellants are entitled to discovery of matters relevant to jurisdiction. See Parker, 106 M.S.P.R. 392, ¶ 8. The Board, however, does not feel it is necessary to codify this precedent in these regulations. With regard to issues of timeliness, the agency generally completes its duty to disclose relevant information once it establishes that it provided the appellant with the appropriate notice of appeal rights.

A commenter stated that it was unrealistic to require an appellant to establish jurisdiction without first engaging in discovery and that the proposed amendments would make it more difficult to rely upon circumstantial evidence to establish MSPB jurisdiction.

We believe that the proposed amendments will not result in making it more difficult for an appellant to show that the Board has jurisdiction over his appeal. As noted in our response to an earlier comment, administrative judges issue acknowledgement orders and additional orders if needed to inform the parties of their burdens. The Board requires its administrative judges to provide a fair and just adjudication and to rule on relevant evidence. 5 CFR 1201.41; see also, e.g., Hall v. Department of Defense, 119 M.S.P.R. 180, ¶¶ 4, 5 (2013). Administrative judges also have wide discretion in matters pertaining to discovery, and an administrative judge's discovery rulings will not stand if they are too restrictive. See, e.g., Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 27 (2012).

A commenter questioned why the Board did not include USERRA reemployment claims under proposed section 1201.57 and suggested that this section be amended to cover such claims.

From 1979 until 1994, a claim that an agency violated an individual's right under USERRA's predecessor statute to return to civilian employment following military duty was within the Board's appellate jurisdiction under regulations issued by OPM. See 1979 through 1993 versions of 5 CFR part 353, subparts C & D. Such reemployment appeals were governed by section 7701 procedures. See Britton v. Department of Agriculture, 23 M.S.P.R. 170, 173 (1984). USERRA, enacted in 1994, made, among other things, the basis for Board jurisdiction over reemployment appeals statutory. See 38 U.S.C. 4324.

The Board has no basis for concluding that in enacting USERRA Congress meant to bring reemployment appeals outside the coverage of 5 U.S.C. 7701; the effect of such a change would have been to place the burden of proof on the merits on the appellant, when under section 7701(c)(2)(B) it is on the agency, Britton, 23 M.S.P.R. at 173, and to eliminate an appellant's right to raise an affirmative defense under section 7701(c)(2). Such changes would have been to the detriment of individuals seeking to vindicate their reemployment rights following military duty, and there is no indication that in enacting USERRA Congress intended such changes to Board procedures. Accordingly, the Board will not include USERRA reemployment appeals in section 1201.57, as that section covers appeals in which the appellant bears the burden of proof on the merits and may not raise affirmative defenses.

Nevertheless, the commenter is correct in stating that the Board has taken jurisdiction in USERRA reemployment appeals based on nonfrivolous allegations. See Silva v. Department of Homeland Security, 112 M.S.P.R. 362, ¶ 19 (2009); Groom v. Department of the Army, 82 M.S.P.R. 221, ¶ 9 (1999); accord DePascale v. Department of the Air Force, 59 M.S.P.R. 186, 187 n.1 (1993) (arising under USERRA's predecessor statute). The current regulatory revisions generally aim to codify the case law-based methods for establishing jurisdiction in different types of appeals, however, and there is no reason to use this occasion to place a higher jurisdictional burden than currently exists on appellants in USERRA reemployment appeals. Thus, it is appropriate to except USERRA reemployment appeals from the requirement at section 1201.56(b)(2)(A) that jurisdiction be established by preponderant evidence. The final rule provides an exception to section 1201.56(b)(2)(A) for cases in which the appellant asserts a violation of his right to reemployment following military duty under 38 U.S.C. 4312-4314.

Several commenters expressed a concern that the MSPB was raising jurisdictional standards in constructive adverse action cases without any stated rationale for such action.

The Board understands the commenters' concerns regarding the proposed rule § 1201.4(s), but the rule neither raises jurisdictional standards in cases before the Board, nor alters Board precedent concerning the type of documentation that can be used to satisfy the burden of making a nonfrivolous allegation. It is merely to remind the parties of obligations imposed by 18 U.S.C. 1001(a). The definition of “nonfrivolous allegation” in the first sentence of proposed rule § 1201.4(s) is based on longstanding Board precedent. The second sentence in the proposed rule further explains that, when an allegation is made under oath or penalty of perjury, it will generally be considered nonfrivolous if it is more than conclusory, plausible on its face and material to the legal issues in the appeal. The Board furthers note that, in this context, an allegation is made under oath or penalty of perjury if it is accompanied by the following: “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge, information and belief. Executed on (date). (Signature).” See 28 U.S.C. 1746; Cobel v. Norton, 391 F.3d 251, 260 (D.C. Cir. 2004).

Several commenters stated that the MSPB was inappropriately limiting the type of evidence that could be used for satisfying the burden of making a nonfrivolous allegation. A commenter was concerned that the Board was improperly limiting such evidence to a statement under penalty of perjury while disallowing the use of evidence, such as an email.

We disagree with the commenter's statement that the Board is inappropriately limiting the type of evidence that could be used for satisfying the burden of making a nonfrivolous allegation.

Several commenters questioned whether the MSPB could modify the definition of “nonfrivolous allegation” in a regulation because that term has already been defined in controlling U.S. Court of Appeals for the Federal Circuit precedent interpreting jurisdiction-conferring statutes and OPM regulations.

As previously stated, the definition of “nonfrivolous allegation” in proposed rule 1201.4(s) is based on longstanding Board precedent. Further, while we are cognizant of the U.S. Court of Appeals for the Federal Circuit's precedent analyzing the Board's case law applying nonfrivolous allegation standards, we disagree with the commenters' conclusion that this precedent is binding. The court has routinely held that the Board has properly applied the nonfrivolous allegation standard. We believe this court review is instructive, rather than directive. In addition, we believe it is not appropriate to determine here whether the court owes deference to the Board's interpretation of its own jurisdiction under this particular regulation and instead believe such matters should properly be handled in due course on a case-by-case basis. See Chevron , 467 U.S. at 842-45.

Several commenters asked the Board to amend 5 CFR 1201.56 to add a new subparagraph (e) addressing when an appellant is entitled to a jurisdictional hearing. A commenter also suggested that the MSPB include in the final rule a procedure under which the Board would not be required to hold an evidentiary hearing on matters on which an appellant bears the burden of proof when there is no genuine issue of material fact to be resolved.

The Board believes that this proposed amendment is not necessary because the general definition of a nonfrivolous allegation in the proposed regulations and the show cause orders that administrative judges routinely issue in appeals tailored to a specific case are sufficient to inform an appellant of what he or she will be required to do to obtain a jurisdictional hearing.

A commenter suggested that the MSPB reconsider drafting section 1201.5 from option C because in the commenter's opinion option C more clearly identified matters that must be proven by preponderance of the evidence.

The Board carefully considered the four options (A-D) and decided against incorporating the referenced language contained in option C because (a) such information is already communicated to appellants in show cause orders, and (b) the inclusion of the level of detail set forth in the referenced section of option C would require frequent updates to the Board's regulations to reflect changes in the law and bind the Board to the contents of its regulations when the flexibility to reconsider past decisions is sometimes needed.

A commenter identified the jurisdiction matrix produced by the MSPB regulations working group as a useful tool and proposed that the MSPB include this document in its regulations or on its Web site.

The Board appreciates that the commenter found this table so useful and will undertake to maintain a similar document summarizing MSPB jurisdiction on the MSPB Web site.

A commenter suggested that the Board should replace the term “nonfrivolous allegation” with a term that, according to the commenter, could be more easily understood and which has the same meaning.

While the Board understands the commenter's concern, it believes that it would simply be impractical to change this well-established legal term at this stage. The term has been adopted in case law by both the Board and the U.S. Court of Appeals for the Federal Circuit. Moreover, revised 5 CFR 1201.4(s) provides a definition for this term that the Board expects will be easily understood by practitioners and appellants, including pro se appellants.

A commenter suggested section 1201.4(s) would be improved if the MSPB added examples of a “conclusory statement” and a statement that the MSPB would consider to be “more than conclusory.”

The Board appreciates that examples are often an effective means of communicating legal concepts and so has included examples elsewhere in its regulations. However, at the present time, the Board believes it most appropriate to develop the meaning of these terms through case law and perhaps add examples to its regulations at a later date.

A commenter criticized the proposed rule for failing to recognize that all MSPB appeals include “what” and “who” jurisdictional elements that always require proof by preponderant evidence.

This comment appears to recommend that the Board adopt a major structural element of option C, a potential approach to making jurisdictional determinations that was previously published on the Board's Web site but that the Board Members chose not to propose in this rulemaking. The main structural element of option B, the approach that the Board has proposed (with minor modification), is to distinguish between categories of appeals that are covered by 5 U.S.C. 7701 procedures and those that are not. Options B and C were formulated as comprehensive methods for making jurisdictional determinations, and the Board sees no compelling reason to import a major element of option C into option B.

A commenter questioned whether the MSPB erred by failing to justify requiring nonfrivolous allegations of jurisdictional elements that are also merits issues in IRA, VEOA, USERRA, and other types of appeals. This commenter explained that requiring nonfrivolous allegations in such appeals was inappropriate where the relevant statutes provide that an individual who “alleges,” “claims,” “believes,” or “considers” that an agency acted in a particular way is entitled to appeal to the MSPB. Therefore, the commenter concluded that the Board's requirement of raising nonfrivolous allegations to establish jurisdiction in these appeals would be found “not in accordance with law” under the Administrative Procedures Act (APA), 5 U.S.C. 706(2)(A).

The proposed revision in the regulations is primarily intended to accurately reflect current, controlling Board and court precedent for establishing MSPB's jurisdiction in various types of appeals. We doubt that this precedent would be subject to collateral attack in an APA proceeding because it already has been subjected to years of court review. In addition, the Board carefully considered a comprehensive reform of our jurisdictional standards (options C and D) but concluded that introducing such changes in our standards would not be the best option to follow.

A commenter expressed his preference for option C and noted his concern that the proposed rule improperly treated purely merits issues as jurisdictional issues and left undisturbed case law in which the MSPB and the U.S. Court of Appeals for the Federal Circuit improperly classified merits issues as jurisdictional requirements.

The Board does not agree with the comment that the requirement of raising nonfrivolous allegations to establish jurisdiction in certain appeals would be found not in accordance with law. The Board has proposed revisions to its jurisdictional regulations to clarify the burdens on parties and to insure that the Board's regulations are consistent with both statutes and case law. The Board is not revising its jurisdictional regulations for the purpose of reversing controlling precedent. Therefore, we agree that the regulations codify and endorse Board and U.S. Court of Appeals for the Federal Circuit precedent. The Board believes that such consistency and clarification are helpful to the parties it serves. Also, as noted earlier, the Board expects an administrative judge to provide notice to an appellant of the specific jurisdictional burdens raised in an appeal.

A commenter stated that the proposed rule improperly treated the exhaustion requirement in IRA and VEOA appeals as a jurisdictional requirement.

According to the commenter, U.S. Supreme Court precedent treats administrative exhaustion requirements that are “analogous to those in IRA and VEOA appeals” as “claim processing rules” and not jurisdictional requirements. The Supreme Court has never directly opined on the nature of administrative exhaustion requirements in the IRA or VEOA context. Furthermore, Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001), an appellate court decision that is binding on the Board, squarely holds that exhaustion of the Office of Special Counsel (OSC) complaint process is a jurisdictional prerequisite to an IRA appeal. The Yunus decision is consistent with other appellate court decisions holding that filing of an administrative claim is a jurisdictional prerequisite to suing the government in tort, GAF Corp. v. United States , 818 F.2d 901, 904 (D.C. Cir. 1987), in contract, Maropakis Carpentry, Inc. v. United States , 609 F.3d 1323, 1327 (Fed. Cir. 2010), and for discrimination in employment, Hays v. Postmaster General , 868 F.2d 328, 330-31 (9th Cir. 1989). The Board is not persuaded that it is “improper” to treat the exhaustion requirement in IRA and VEOA appeals as jurisdictional prerequisites to filing such appeals.

A commenter observed that the Board may not affirm any agency action or decision, including in IRA, VEOA, and USERRA appeals, where the agency violated the appellant's constitutional rights.

The commenter does not cite any decision in which the Board has either considered or declined to consider a constitutional claim in an IRA, VEOA, or USERRA appeal. Moreover, the commenter does not point to any portion of the laws conferring jurisdiction over these three types of appeals that gives the Board the authority to consider constitutional claims. While it is true that in appeals governed by 5 U.S.C. 7701— i.e. , appeals other than IRA, VEOA, and USERRA appeals—the Board will consider constitutional claims, in doing so the Board will identify the constitutional interest at stake as part of its analysis. For example, the Board will consider a claim that an agency removed an individual without affording him minimum due process in accordance with the Fifth Amendment, so long as the individual was the type of employee with a constitutionally-protected property interest in continued Federal employment. E.g., Clark v. U.S. Postal Service , 85 M.S.P.R. 162, ¶ 1 (2000). At least with respect to VEOA and USERRA appeals, it is not clear what constitutionally-protected interests might be implicated in the most frequently-arising fact patterns, where individuals seek to vindicate statutory interests such as the right to veterans' preference in initial employment, the right to compete for employment, the right to reemployment following military duty, and the right to be free of discrimination in employment based on prior military service or a present obligation to perform such service. For these reasons, the Board believes that the basis and scope of its authority to adjudicate constitutional claims in IRA, VEOA, and USERRA appeals is best left to development in the case law.

A commenter suggested that 1201.57 should be amended to state with greater specificity the standards of proof for each of the appeals covered by that regulation.

The Board has proposed the revisions to its jurisdictional regulations to insure that they are consistent with statutes, other regulations, and case law. The Board considered stating the specific standards or elements for establishing jurisdiction for each type of appeal in the revised regulations but ultimately concluded that the inclusion of this information may have the unintended effect of confusing the reader, especially a pro se appellant. In addition, the Board's jurisdiction is a continually evolving concept. As a result, the Board also was concerned that the regulations would quickly become obsolete or inaccurate if specific standards for establishing jurisdiction in each type of appeal were provided in the regulations. Finally, as noted several times earlier, the Board expects administrative judges to provide notice to the appellant of the specific jurisdictional burdens raised in the appeal.

A commenter recommended that section 1201.57(e) should be amended to require the jurisdictional notice to be issued as soon as practicable and to allow the parties additional time, if needed, to complete discovery before the jurisdictional question is resolved.

The Board appreciates the commenter's valid concern. As the commenter correctly notes, administrative judges typically do issue jurisdictional show cause orders as soon as practicable, often within weeks after an appeal is filed. However, in certain cases, new questions of jurisdiction materialize only after the parties file pleadings that highlight emerging issues. As a result, the Board believes that its practice is working well for most cases and that, as a rule, administrative judges usually issue jurisdictional notices at the appropriate time. As for the comment about allowing the parties additional time to complete discovery before the jurisdictional question is resolved, the Board believes, as stated earlier, that such matters are best left to the administrative judges' discretion on a case-by-case basis.

A commenter suggested that the Board should undertake additional study to determine whether its regulations should address any additional jurisdictional pleading requirements that may arise when matters are made appealable to the Board by OPM regulation, rather than by statute.

The commenter notes that options C and D, previously posted on the Board's Web site as potential approaches to jurisdictional determinations, contained detailed pleading requirements for some types of appeals authorized by OPM regulations. The Board is aware that case law sets forth specific substantive requirements for establishing jurisdiction over certain kinds of regulatory appeals, such as those brought by probationers or that challenge employment practices, that may not be applicable in other kinds of cases. All appeals authorized by OPM regulations are covered by 5 U.S.C. 7701, however, and the purpose of the current rulemaking is to distinguish broadly between how jurisdiction is established in appeals that are covered by, and those that are not covered by, section 7701. Laying out substantive jurisdictional tests for different kinds of appeals within one of those categories is best left to developing case law.

A commenter suggested that the Board reorder paragraphs (b) and (c) of 1201.57 to reinforce the rule that the Board cannot bypass a jurisdictional question to reach the merits of a case.

The Board agrees with this suggestion and will make the minor edit necessary by switching the order of the paragraphs.

A commenter found the language in 1201.57(c) was ambiguous where it states that the paragraph applies “[e]xcept for matters described in subsections (b)(1) and (3) of this section above.”

We agree and have amended this provision to make it clearer.

A commenter proposed a revision of 1201.57(c) on the grounds that an appellant should be required to make more than a nonfrivolous allegation that the appeal was timely filed and that the preponderance of the evidence standard should apply to timeliness issues.

The Board believes that the current language in the regulations is appropriate and protects the rights of appellants to show by preponderant evidence that their appeals were timely filed or to establish good cause for an untimely filing, consistent with long-established precedent. The current language also accurately reflects that, for an appellant to be entitled to a hearing on the timeliness issue, he or she must raise a nonfrivolous allegation that the appeal was timely filed. That said, the commenter correctly notes that timeliness and jurisdictional questions are not always inextricably intertwined and so administrative judges need to carefully review the record in such cases to provide the parties with the proper notice and determine if a hearing is warranted under the circumstances.

A commenter asserted that the amendments to the Board's regulations would increase the number of constructively discharged employees who are unsuccessful before the Board both on the merits and in establishing the MSPB's jurisdiction.

The Board does not agree. The regulatory revisions under discussion are certainly not intended to make it more difficult to establish jurisdiction or to prevail in a constructive adverse action appeal. Instead, the Board is attempting to codify principles in case law that are not fully reflected in the Board's regulations. The commenter's true concern appears to be that the Board's “current practice” results in appellants not “winning when . . . they ought to” in constructive adverse action appeals. However, this rulemaking is not intended to work a fundamental change in the way the Board approaches such appeals.

A commenter objected to Board's use of the term “conclusory” as well as the Board's definition of that term.

The Board believes that the use of the term is clear to convey the idea that something is conclusory if it is an inference that has no proof but is stated nonetheless. In other words, something is conclusory if it consists of or relates to a conclusion or assertion for which no supporting evidence is offered. The definition of “conclusory” is easily obtained with an online search although the word may not be found in older or abridged dictionaries. Yet as the commenter correctly notes, recent editions of Blacks' Law Dictionary define conclusory as “expressing a factual inference without stating the underlying facts on which the inference is based.” BLACK'S LAW DICTIONARY (7th ed. 1999); id. (8th ed. 2004); id. (9th ed. 2009).

A commenter suggested that the Board should abandon trying to define what a nonfrivolous allegation is, and should instead decide jurisdiction the way Federal courts do.

The commenter does not specify how he believes the Board is determining questions of jurisdiction differently than do Federal courts. Nonetheless, the commenter correctly observes that the Board is a tribunal of limited jurisdiction and so the Board believes that it is properly adjudicating jurisdictional issues that come before it, including determining if a nonfrivolous allegation has been raised.

A commenter suggested that the Board should revise its definition of “preponderance of the evidence” by adopting “the standard law dictionary definition.”

The Board currently defines “preponderance of the evidence” as “[t]he degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.” The proposed rule would move this definition from section 1201.56 to section 1201.4 but would leave the substance of the definition unchanged. Citing a law dictionary, the commenter suggests that the Board change the definition to “evidence which is more convincing than the evidence offered in opposition to it. It is [the] degree of proof which is more probable than not.” The commenter believes that the current definition creates confusion because it is framed in terms of what a “reasonable person” would find rather than what an administrative judge should find.

The Board declines to adopt this suggestion. Over a period of decades, the Board's primary reviewing court has cited and applied the Board's definition of “preponderance of the evidence” without questioning its validity or clarity. E.g., Haebe v. Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002); Jackson v. Veterans Administration , 768 F.2d 1325, 1329 (Fed. Cir. 1985). Changing the definition would allow parties to argue before the court that the new definition has a different meaning than the old one, and the Board would then need to convince the court that no change in meaning was intended. If the Board agreed with the commenter that the current definition creates confusion, then it might be worth the risk of having the court find that a revised definition has a new meaning, but the Board is not aware of widespread confusion over the wording of the current definition.

In fact, the current definition of “preponderance of the evidence” stands in clear contrast to the definition of “substantial evidence.” The former definition focuses on what a reasonable person “would accept” as sufficient to prove a contested fact, whereas the latter focuses on what a reasonable person “might accept” as sufficient to prove a contested fact “even though other reasonable persons might disagree.” This clear contrast would be lost if the reference to a “reasonable person” were removed from the definition of “preponderance of the evidence” as the commenter suggests.

A commenter stated that the Board lacks authority to issue 5 CFR 1208.23(b) limiting the right to an evidentiary hearing to cases that are timely filed and within the Board's jurisdiction.

The commenter appears to object to the Board's reference to 5 CFR 1208 if an individual would like additional information regarding VEOA or USERRA appeals. However, 5 CFR 1208 is not a proposed rule and therefore is not subject to the notice and comment of the regulations at issue. Furthermore, the Board's proposed regulations do not provide for summary judgment. It is well settled that a VEOA complainant does not have an unconditional right to a hearing before the Board, and a USERRA claimant is entitled to a hearing on the merits only upon establishing Board jurisdiction over his appeal. Downs v. Department of Veterans Affairs , 110 M.S.P.R. 139, ¶¶ 17-18 (2008). The Board may decide a VEOA appeal on the merits without an evidentiary hearing only where there is no genuine dispute of material fact and one party must prevail as a matter of law. Jarrard v. Department of Justice , 113 M.S.P.R. 502, 506 (2010).

A commenter, citing Kirkendall v. Department of the Navy , 479 F.3d 830, 834 (Fed. Cir. 2009), asserted that 5 U.S.C. 7701 applies to VEOA appeals and questioned the Board's citation to Goldberg v. Department of Homeland Security , 99 M.S.P.R. 660 (2005), for the proposition that the Board lacks jurisdiction to adjudicate an affirmative defense under 5 U.S.C. 7701(c)(2) in these appeals.

After reviewing Kirkendall, Goldberg and related precedent, the Board remains convinced that it lacks jurisdiction over affirmative defenses in a VEOA or USERRA appeal. In particular, we note that the U.S. Court of Appeals for the Federal Circuit found in Kirkendall that the failure of Congress to specifically reference section 7701 in a statute, such as USERRA, demonstrates that it did not necessarily want all provisions of section 7701 to apply to the Board's review of the claim. Furthermore, we note that the court has affirmed the Board's interpretation of the VEOA statute. For instance, in a veterans' preference case, which was decided on the merits, the court affirmed the Board's finding that it did not have jurisdiction over the appellant's affirmative defenses of discrimination and harmful procedural error. Graves v. Department of the Navy , 451 F. App'x 931 (Fed. Cir. 2011). Accordingly, the Board declines to change its position that it lacks jurisdiction over affirmative defenses in a VEOA or USERRA appeal.

A commenter asserted that the Board may not “overrule” section 1201.56 in VEOA appeals by adjudication because the Board lacks the delegated authority to do so.

At the outset, the Board notes that it has the authority to review or modify its regulations. 5 U.S.C. 1204(h) and 7701(k).

The commenter, though, suggests that the Board tried to “overrule” 5 CFR 1201.56 by adjudication in the cases of Donaldson v. Department of Homeland Security , 119 M.S.P.R. 489 (2013) (Table); Donaldson v. Department of Homeland Security , 119 M.S.P.R. 244 (2013) (Table); Donaldson v. Department of Homeland Security , 118 M.S.P.R. 219 (2012) (Table); Donaldson v. Department of Homeland Security , 117 M.S.P.R. 609 (2012) (Table); Donaldson v. Department of Homeland Security , MSPB Docket No. DC-1221-12-0356-B-1 (Initial Decision, Jan. 9, 2013); Donaldson v. Department of Homeland Security , MSPB Docket No. DC-300A-12-0619-I-1 (Initial Decision, Sep. 17, 2012); Donaldson v. Department of Homeland Security , MSPB Docket No. DC-1221-12-0356-W-1 (Initial Decision, June 28, 2012); Donaldson v. Department of Homeland Security , MSPB Docket No. DC-3330-11-0636-I-1 (Aug. 10, 2011); and Donaldson v. Department of Homeland Security , MSPB Docket No. DC-3330-11-0637-I-1 (July 29, 2011).

According to the commenter, the Board's decisions in Donaldson contravened the U.S. Court of Appeals for the Federal Circuit's holding in Tunik v. Merit Systems Protection Board , 407 F.3d 1326 (Fed. Cir. 2005). The Board disagrees with the commenter's characterization of what the Board did in the Donaldson cases. In any event, the U.S. Court of Appeals for the Federal Circuit repeatedly concluded that the Board correctly decided the Donaldson cases, including the jurisdictional determinations therein. See Donaldson v. Department of Homeland Security , 528 F. App'x 986 (Fed. Cir. 2013) (Table) (the court affirmed the Board's decision that the appellant was not entitled to relief under VEOA); Donaldson v. Merit Systems Protection Board , 527 F. App'x 945 (Fed. Cir. 2013) (Table) (the court held that the Board correctly ruled that it lacked jurisdiction over the appellant's whistleblower claim); Donaldson v. Department of Homeland Security , 495 F. App'x 53 (Fed. Cir. 2012) (Table) (the court affirmed the Board's decision that the agency did not violate USERRA and VEOA when it failed to select him for positions). Notwithstanding the Board's holdings in the Donaldson appeals, the court in Tunik pointed out that there are “numerous exceptions” to the notice and comment rulemaking requirements of 5 U.S.C. 553. Tunik , 407 F.3d at 1341-45. In particular, the court in Tunik indicated that the Board is authorized to repeal a regulation through notice and comment procedures, which is exactly what the Board is doing here. Tunik , 407 F.3d at 1345. The commenter appears to concede this point, when he notes that the Board is not precluded from repealing the regulation in accordance with section 553(b).

A commenter questioned the validity of 5 CFR part 1208 and 1201.57 because these regulations allegedly inadequately protect veterans' preference rights.

The commenter asserts that Congress intended greater protection for preference-eligible veterans than the aforementioned regulations provide, but the commenter does not provide any examples. Again, the main purpose of this rulemaking is to make the Board's regulations consistent with how the Board actually makes jurisdictional determinations, as explained in the case law.

A commenter questioned why the Board had abandoned beneficial amendments proposed in 2012, such as allowing litigating parties to file reply briefs and steps to facilitate settlement.

The amendments proposed by the Board in 2012 (77 FR 33663) were not abandoned. These proposed amendments were adopted in a final rule published later that year (77 FR 62350). The final rule authorized the filing of reply briefs (5 CFR 1201.114(a)) and included steps to facilitate settlement (5 CFR 1201.28).

A commenter objected to the Board's proposal to limit the issues that may be raised in an IRA appeal. The commenter specifically objected to the fact that agencies no longer need to establish the justification for a personnel action in an IRA appeal.

The Board does not agree with the commenter that the Board's regulations ease an agency's requirement to prove misconduct if an employee has first chosen to file with the OSC. The Board reminds the commenter that 5 U.S.C. 1221 indicates that corrective action will not be ordered even if an individual establishes that he/she has disclosed that a protected disclosure was a contributing factor in a personnel action, if an agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure. The agency is thus still required to justify its personnel action.

A commenter suggested that the Board move proposed paragraph 1201.56(d) and 1201.57(e) to a newly created section “1201.41(d) Proof.”

The Board considered merging into a single provision this requirement for administrative judges to provide the parties notice of the proof required as to the issues in each type of appeal. However, we ultimately determined that the parties, particularly pro se appellants, would be less likely to be confused if it were set forth separately in 1201.56 and 1201.57.

A commenter argued that the term “standing” in 1201.57(b)(3) was an inappropriate way to describe a jurisdictional element that must be established by a preponderance of the evidence. The commenter suggested that the term “coverage” would be more appropriate.

As the commenter points out, under 1201.57(b)(3), a party must prove, by preponderant evidence, that he or she “[h]as standing to appeal” an action, but only “when disputed by the agency or questioned by the Board.” The regulation defines “standing” to mean that the individual “falls within the class of persons who may file an appeal under the law applicable to the appeal.” The Board believes that the term “standing” under 1201.57(b)(3) is appropriate and consistent with court and Board precedent. Standing is a threshold requirement that implicates jurisdiction and is “`perhaps the most important' condition for a justiciable claim.” Allen v. Wright , 468 U.S. 737, 750 (1984). Therefore, the question of standing is a preliminary issue that may be raised by the agency or the Board, to be explored as part of the Board's inquiry into whether it has jurisdiction over a case. Silva , 112 M.S.P.R. 362, ¶ 6 & n.2

A commenter expressed a concern that the Board's regulations and case law will impair the ability of appellants in IRA appeals to establish jurisdiction by requiring the production of documents, such as an OSC decision to terminate its investigation, to satisfy the OSC exhaustion requirement. This commenter noted that 5 U.S.C. 1221(f)(2) states that OSC's decision to terminate its investigation may not be considered in an IRA appeal.

The commenter does not actually seem to take issue with any portion of the proposed regulations. Instead, the commenter's true concern is that the Board has changed the test for OSC exhaustion in recent Board precedent. The Board believes that such matters are best addressed in developing case law.

A commenter suggested that information concerning the degree and burden of proof borne by the appellant should come exclusively from the administrative judge and the Board should overturn case law that allows such advice to be exclusively communicated to an appellant in an agency's motion to dismiss.

It is well-settled that an administrative judge's failure to provide proper notice, as required by Burgess , 758 F.2d at 643-44, can be cured if the agency's pleadings contain the notice that was lacking in the acknowledgement order or if the initial decision itself puts the appellant on notice of what to do to establish jurisdiction, thus affording the appellant with the opportunity to meet the jurisdictional burden in a petition for review. The Board believes that restricting notice to that which is provided in the acknowledgement order would unfairly limit the opportunity to later clarify matters that are complicated or unclear when first filed during the processing of an appeal.

Accordingly, for the reasons set forth in the preamble, the Board amends 5 CFR part 1201 as follows:

The Coast Guard is establishing this Special Local Regulation on the waters of the Gulf of Mexico in the vicinity of Manatee River, Florida during the Bradenton Riverwalk Regatta. On November 26, 2014, the Coast Guard published a notice proposing this final rule. No comments were received.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register because immediate action is needed to minimize potential danger to the public during this event and the rule will have minimal impact on the public and waterway users. The comment period on this rule ended on December 26, 2014 and the Coast Guard did not have sufficient time to publish notice of this rule. This event has been well publicized by the City of Bradenton and local media outlets. Any delay in the effective date of this rule would be contrary to the public interest because this rule is needed to minimize potential danger to the public during the Bradenton Riverwalk Regatta and fireworks display.

The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233.

The purpose of the rule is to provide for the safety of life on navigable waters of the United States during the Bradenton Riverwalk Regatta.

The Coast Guard received no comments related to this event during the comment period. This rule makes one change to the proposed regulation. In the NPRM, the special local regulation exclusion areas would be enforced from 11:00 a.m. to 4:30 p.m. However, the Bradenton Riverwalk Regatta includes a fireworks display. To ensure the safety of race participants, participant vessels, spectators, and the general public on the navigable waters of the United States during the fireworks display, the Coast Guard is extending the enforcement period for the special local regulation until 7:30 p.m. Because the fireworks display will take place in the race area, the geographic area of the proposed enforcement zones remains unchanged in this rule. Additional notice and opportunity to comment on this change is unnecessary because extending the enforcement period a few hours is a logical outgrowth of the the NPRM. The fireworks display has always been part of the schedule of events, publicized by the City of Bradenton and local media. Furthermore, the additional impact of the extended enforcement period is minimal. The enforcement areas will be restricted for three extra hours once per year.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this rule on small entities. 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.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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. 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 will not call for a 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 determined that this rule 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 INFORMATION 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 would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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.

This rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Regulations and Rules (Practices and Procedures in Canada) in their respective jurisdictions. Under agreement with the SLSMC, the SLSDC is amending the joint regulations by updating the Regulations and Rules in various categories. The changes will update the following sections of the Regulations and Rules: Seaway Navigation, and Radio Communications. Because these changes to the joint regulations are either technical amendments or corrections, the SLSDC finds that a notice-and-comment period would be unnecessary and impractical. The rule will become effective on March 31, 2015 in Canada and in order to avoid confusion among the users of the Seaway, the rule will become effective on the same date in the United States.

Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://www.Regulations.gov.

The changes to the joint regulations are technical amendments or corrections.

This regulation involves a foreign affairs function of the United States and therefore Executive Order 12866 does not apply and evaluation under the Department of Transportation's Regulatory Policies and Procedures is not required.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Regulations and Rules primarily relate to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.

This regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, et seq. ) because it is not a major federal action significantly affecting the quality of the human environment.

The Corporation has analyzed this rule under the principles and criteria in Executive Order 13132, dated August 4, 1999, and has determined that this rule does not have sufficient federalism implications to warrant a Federalism Assessment.

The Corporation has analyzed this rule under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives.

This regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review.

Between 1982 and 2009, the number of people who operated motor vehicles off road increased by more than 153 percent in the United States (“Outdoor Recreation Trends and Futures, a Technical Document Supporting the Forest Service 2010 RPA [Forest and Rangeland Renewable Resources Planning Act of 1974] Assessment,” p. 135 (H. Cordell, 2012)). While both motor vehicle use and OSV use are increasing in the National Forests and Grasslands, so are many other types of recreational activities. From 1982 to 2009, the number of people in the United States participating in viewing or photographing birds increased 304.2 percent, the number of people participating in day hiking increased 228.2 percent, the number of people participating in backpacking increased 167 percent, the number of people participating in fishing increased 36 percent, and the number of people participating in hunting increased 34 percent ( id. at 135-36). Providing for the long-term sustainable use of NFS lands and resources is essential to maintaining the quality of the recreation experience in the National Forests and Grasslands.

In 2005, the Forest Service (Agency) promulgated the TMR to provide more effective management of public motor vehicle use. The 2005 TMR includes subpart B, which requires designation of those NFS roads, NFS trails, and areas on NFS lands where public motor vehicle use is allowed (36 CFR 212.51(a)), and subpart C, under which the Responsible Official has the discretion to determine whether to regulate OSV use and to establish a system of routes and areas where OSV use is allowed unless prohibited or a system of routes and areas where OSV use is prohibited unless allowed. Subpart C of the 2005 TMR authorizes but does not require the Responsible Official to allow, restrict, or prohibit OSV use on NFS roads, on NFS trails, and in areas on NFS lands.

On March 29, 2013, the U.S. District Court for the District of Idaho ruled that subpart C of the TMR violated Executive Order (E.O.) 11644, as amended by E.O. 11989. Winter Wildlands Alliance v. U.S. Forest Serv., 2013 WL 1319598, No. 1:11-CV-586-REB (D. Idaho Mar. 29, 2013). The court did not rule that the Agency lacks the discretion to determine how to regulate OSV use. To the contrary, the court held that the Forest Service has the discretion to determine where and when OSV use can occur on NFS lands. The ruling requires the Agency to designate routes and areas where OSV use is permitted and routes and areas where OSV use is not permitted on NFS lands, consistent with E.O. 11644, as amended by E.O. 11989, sec. 3(a), but does not dictate where and when OSV use can occur on those lands. The court ordered the Forest Service to issue a new rule consistent with the E.O.s.

The Department is amending subpart C of the TMR to provide for management of OSVs on NFS lands consistent with the EOs, the court's order, and subpart B of the TMR. Specifically, the Department is amending subpart C of the TMR to require the Responsible Official to designate NFS roads, NFS trails, and areas on NFS lands where OSV use is allowed in administrative units or Ranger Districts, or parts of administrative units or Ranger Districts, where snowfall is adequate for OSV use to occur. The Department is not removing the exemption for OSVs from subpart B.

The Department believes that a separate subpart for regulation of OSV use is appropriate because of the difference in management and impacts of OSV use and other types of motor vehicle use on NFS lands.

The difference between management of OSV use and management of other types of motor vehicle use on NFS lands stems from differences in their associated settings, activities, environmental impacts, and public preferences. National Forests and Grasslands change when snow blankets the landscape. Vegetation camouflages, animals burrow, and water transforms into ice. Recreationists and others accessing snow-covered National Forests and Grasslands typically trade hiking boots for skis and snowshoes and motor vehicles with tires for those with tracks and sleds.

Because of snowfall patterns, National Forests and Grasslands vary significantly in their need to address OSV use. National Visitor Use Monitoring (NVUM) data from 2008 to 2012 show that approximately 30 percent of NFS lands do not offer OSV recreation opportunities. OSV use occurs only when sufficient snow is present, in contrast to other types of motor vehicle use, which can occur at any time of the year. Other types of motor vehicles operating over snow are regulated under subpart B of the TMR.

When properly operated and managed, OSVs do not make direct contact with soil, water, and vegetation; whereas most other types of motor vehicles operate directly on the ground. Unlike other types of motor vehicles traveling cross-country, OSVs generally do not create a permanent trail or have a direct impact on soil and ground vegetation. In some areas of the country, OSV use is therefore not always confined to roads and trails.

The public's OSV preferences and practices on NFS lands vary nationwide due to different terrain, snow typology and amount, recreational activities, and transportation needs. OSV use on NFS lands in the Northeast and Midwest is largely trail-based, while the larger, wide-open, powder-filled bowls in western mountains can support cross-country OSV use.

Subpart B of the TMR recognizes that cross-country travel by other types of motor vehicles is generally unacceptable. Subpart C of the TMR as originally promulgated and in the final rule recognizes that cross-country travel by OSVs may be acceptable in appropriate circumstances.

Recreational preferences are another factor accounting for the difference in management of OSV use and other types of motor vehicle use. The public's desire for recreational opportunities is different in the summer and the winter. The public enjoys the National Forests for a variety of winter activities including snowmobiling, cross country skiing, snowshoeing, and winter snow play. NVUM data from 2008 to 2012 indicate that 21 percent of public use of the National Forests (152 million visits) occurs during the snow season. Most of this winter use (69 percent) occurs at alpine ski areas. Nearly 4 million people enjoy snowmobiling on the National Forests.

In summary, OSV route and area designations will sustain natural resource values, enhance user experiences, and be consistent with other types of motor vehicle use designations on NFS lands.

Consistent with § 212.50(b) of subpart B of the 2005 TMR, existing decisions that allow, restrict, or prohibit OSV use on NFS roads, on NFS trails, or in areas on NFS lands that were made under prior authorities (part 295 or subpart C) will remain in effect under the final rule and will not have to be revisited.

Analogous to § 212.52(a) of subpart B of the 2005 TMR, the final rule provides that public notice with no further public involvement is sufficient for previous administrative decisions, made under other authorities and including public involvement, that regulate OSV use on NFS roads, on NFS trails, and in areas on NFS lands over the entire administrative unit or Ranger District, or parts of the administrative unit or Ranger District, where snowfall is adequate for OSV use to occur, and no change is required to these previous decisions. In short, units or Districts that have completed OSV use designations under other authorities and including public involvement do not have to revisit them.

For clarity, the final rule adds a provision in subpart C regarding the requirement for an OSV use map to display designations for OSV use, separate from the requirement in subpart B for a motor vehicle use map displaying designations for other types of motor vehicle use.

On June 18, 2014, the Forest Service published a document in the Federal Register (79 FR 34678) seeking public comment on the proposed amendments to subpart C of the TMR. The proposed rule was posted electronically on the Federal Register site at www.gpoaccess.gov and at the Federal e-rulemaking site at www.regulations.gov. During the 45-day comment period that ended on August 4, 2014, the Agency received no requests for an extension of the comment period. The Forest Service received 20,210 comments on the proposed rule.

The respondents represented 37 States and the District of Columbia. The following lists the categories of respondents:

• Recreation interests, including permit holders;

• Government agencies;

• Environmental or conservation groups; and

• Individuals who did not identify an affiliation.

Comments came from organizations and individuals concerned about the impacts of OSV use on the environment and on non-motorized uses. Comments also came from organizations and individuals concerned about potential restrictions on OSV use.

Respondents offered general comments either supporting or not supporting the proposed rule or supporting or opposing OSV use in general on NFS lands. Respondents also offered specific comments about sections of the proposed rule that they would like to see revised. Many respondents offered suggestions for implementation, funding, and enforcement of the proposed rule at the local level and comments on other rulemaking efforts or existing Forest Service policy, all of which are beyond the scope of this rulemaking.

Comment: Some respondents believed that the Forest Service has successfully used current subpart C of the TMR for managing OSV use and that there is no reason to implement the proposed rule.

Response: The March 29, 2013, order requires the Agency to revise subpart C to require, rather than provide for, designation of routes and areas where OSV use is permitted and routes and areas where OSV use is not permitted on NFS lands, consistent with EO 11644, as amended by EO 11989.

Comment: Some respondents stated that the Forest Service should have addressed OSV use in the TMR; that failure to do so has resulted in use conflicts and resource damage; and that the TMR should be reviewed and used as a starting point for developing an over-snow rule.

Response: Current subpart C of the TMR addresses OSV use by providing for but not requiring designation of routes and areas for OSV use. The Department disagrees that the approach to management of OSV use in current subpart C has resulted in use conflicts and resource damage. As stated in the preamble to the proposed and final rules, the Forest Service is amending subpart C in response to a court order to require designation of those NFS roads, NFS trails, and areas on NFS lands that are open to OSV use and to prohibit OSV use that is inconsistent with those designations.

Comment: Some respondents stated that the Forest Service should have more vigorously defended subpart C of the TMR and the Agency's management of OSV use.

Response: The Federal Government vigorously defended subpart C of the TMR in the litigation that resulted in the March 29, 2013, order. This order requires the Agency to revise subpart C to require, rather than provide for, designation of routes and areas where OSV use is permitted and routes and areas where OSV use is not permitted on NFS lands, consistent with EO 11644, as amended by EO 11989.

Comment: Some respondents stated that the proposed rule should not have been published in the summer, when OSV users are not focused on winter recreation.

Response: This rulemaking is court-ordered and is subject to a court deadline. The Agency had to proceed as quickly as possible to comply with the court order. Moreover, no publication time is ideal for everyone. For example, in the winter time, OSV users could be recreating and not focused on rulemaking.

Comment: Some respondents stated that since OSV use is not adequately regulated, and since few current restrictions on OSV use are enforced, OSV use should not be expanded. Other respondents noted that enforcement of restrictions and prohibitions on OSV use is an issue in the backcountry and that OSVs are encroaching on non-motorized areas in search of fresh powder and are disregarding signage in the area. Other respondents stated that the registration fee for OSVs should be raised to pay for increased enforcement and signage for OSV use designations.

Response: Enforcement of the TMR, including subpart C, is beyond the scope of this rulemaking. Forest Service law enforcement personnel play a critical role in ensuring compliance with applicable laws and regulations, protecting public safety, and protecting NFS resources. The Forest Service also maintains cooperative relationships with many State and local law enforcement agencies that provide mutual support across jurisdictional boundaries. Education and cooperative relationships with users support enforcement efforts by promoting voluntary compliance. The final rule will not increase the Agency's budget or the number of law enforcement officers. However, the final rule will enhance consistency and clarity in management of OSV use on NFS lands.

OSV use maps will be available at local Forest Service offices and, as soon as practicable, on Forest Service Web sites. Once an administrative unit or a Ranger District issues an OSV use map, OSV use in that unit or District that is inconsistent with the designations reflected on the map will be prohibited. The Forest Service plans to issue additional travel management guidance in its sign handbook to enhance consistency in content and use of standard interagency symbols in signs.

Comment: Some respondents stated that the Forest Service should not establish an artificial, predetermined date by which local units are required to complete winter travel planning across the NFS. Other respondents requested that the Forest Service establish a timeline for issuance of OSV use maps.

Response: The Department shares an interest in completing route and area designations for OSV use as quickly as possible. The Forest Service will make every effort, within its available resources, to complete route and area designations for OSV use as quickly as possible. However, the Department disagrees with establishing an enforceable deadline for completion of the process. Imposing an enforceable deadline for completing OSV use designations would subject the Forest Service to a legal challenge if, despite its best efforts (perhaps due to the controversy involved in the process), the Agency is unable to meet the deadline. The Department believes that appropriate public input and coordination between the Responsible Official and Federal, State, Tribal, county, and municipal governments offers the best hope for long-term resolution of issues involving designations for motor vehicle use, including OSV use. An inflexible deadline can make collaborative solutions more difficult.

Comment: Some respondents stated that how the Agency will fund management of OSV use and enforce restrictions on OSV use should be considered in OSV designation decisions, and requested that the Agency consider pursuing alternative management practices in coordination with the States and organizations like the Interagency Off-Highway Vehicle (OHV) Working Group established by the State of Montana's Department of Fish, Wildlife, and Parks.

Response: Recreation management in general and recreation funding are beyond the scope of this rulemaking, which addresses designation of routes and areas on NFS lands for OSV use. Forest Service appropriations are authorized by Congress. The Forest Service is committed to using whatever funds it has available to accomplish the purposes of this final rule in a targeted, efficient manner. The Agency makes appropriate use of all other sources of available funding and has a number of successful cooperative relationships with State governments. Volunteer agreements with user groups and others have proven successful in extending Agency resources for trail construction, maintenance, monitoring, and mitigation. Regardless of the level of funding available, the Department believes that the final rule provides an appropriate procedural framework for management of OSV use on NFS lands that is consistent with EO 11644, as amended by EO 11989, the District Court's March 29, 2013, order, and regulation of other types of motor vehicle use on NFS lands. While availability of resources for maintenance and administration must be considered in designating routes for OSV use (§§ 212.55(a) and 212.81(d) of the final rule), cooperative relationships and volunteer agreements may be included in this consideration.

Comment: Some respondents supported the Forest Service policy for managing nonconforming uses in recommended wilderness and wilderness study areas and encouraged the Forest Service to codify this policy nationally in the final rule. Some respondents believed that inventoried roadless areas, areas recommended for wilderness in land management plans, and wilderness study areas should be more protected under the final rule. Other respondents suggested that the Forest Service amend 36 CFR 212.55(e) to state that “National Forest System roads, National Forest System trails, and areas on National Forest System lands in wilderness areas, or primitive areas, inventoried roadless areas, areas recommended for wilderness in land and resource management plans, or wilderness study areas shall not be designated for motor vehicle use pursuant to this section, unless, in the case of wilderness areas, motor vehicle use is authorized by the applicable enabling legislation for those areas.”

Response: The issue regarding nonconforming uses in recommended wilderness and wilderness study areas is beyond the scope of this final rule. The Department believes that the National Forests and Grasslands should provide access for both motorized and non-motorized uses in a manner that is environmentally sustainable over the long term. Designations for motor vehicle use, including OSV use, are best made at the local level, in coordination with Federal, State, Tribal, and local governments and appropriate public involvement, as provided for in this final rule.

Protection of roadless areas is adequately addressed by the national and State-specific roadless rules and need not be addressed in this rulemaking.

Comment: Many respondents commented on the backcountry hut system in Colorado. Some of these respondents were in favor of allowing OSV use in the area surrounding these huts, while other respondents were opposed to OSV use in this area.

Response: Whether OSV use should be allowed in certain areas on NFS lands is beyond the scope of this final rule. This final rule addresses the procedural framework for making OSV use designations rather than OSV use designations themselves. The Department encourages public participation in local OSV use designations.

Comment: Some respondents stated that fat tire bicycles should be regulated under the proposed rule. Some respondents stated that the Forest Service should explicitly incorporate a definition of bicycles that unambiguously distinguishes them from motor vehicles, including OSVs, and should provide guidance to ensure that bicycles are managed as a non-motorized use. Some respondents commented that bicycles should be managed on their own merits and not as an afterthought to motorized travel management.

Response: Regulation of non-motorized use, including bicycles without motors, is beyond the scope of this final rule, which addresses motorized use, specifically, OSV use. The Forest Service has clearly defined the term “bicycle”, which includes new fat tire bicycles, in Forest Service Handbook 2309.18 as “a pedal-driven, human-powered device with two wheels attached to a frame, one behind the other.” Management of bicycles, including fat tire bicycles in winter, would be addressed as part of trail management planning for non-motorized uses. New technologies that merge bicycles and motors, such as e-bikes, are considered motor vehicles under § 212.1 of the TMR.

Comment: Some respondents stated that the proposed rule should require Forest Service employees to spend half their time in the field improving conditions and reducing fuels for fire.

Response: Allocation of employees' time with regard to conditions on the ground and reducing fuel loads is beyond the scope of this final rule, which addresses regulation of OSV use.

Comment: Some respondents stated that the term “Responsible Agency Official” should be clearly defined, and that identifying who this official is might help with potential inconsistency in implementing the rule.

Response: The Forest Service did not propose any changes pertaining to identification of the Responsible Official in the current TMR. Therefore, the request to define the term “Responsible Official” is beyond the scope of this final rule. The Department believes the meaning of this term is clear from the context of the TMR. The Responsible Official in the context of the TMR is the person who has responsibility for managing an administrative unit or a Ranger District and who has delegated authority to make designation decisions under the TMR for that unit or District.

Comment: Some respondents commented that education regarding outdoor ethics is paramount for backcountry activities such as OSV use and should be required in the final rule. These respondents believed that inexperienced users cause much of the environmental damage and use conflicts associated with OSV use and that better outdoor ethics training could prevent a lot of these problems.

Response: Outdoor ethics training is outside the scope of this rulemaking, which addresses designation of routes and areas for OSV use. The Department appreciates the valuable and long-standing contributions of nongovernmental organizations, including user groups, to promote environmental ethics and responsible behavior on Federal lands.

Comment: Some respondents commented that implementation of the proposed rule would have a direct impact on grooming programs and cooperative agreements for grooming among private organizations, counties, and the Forest Service.

Response: The Department disagrees. The final rule revises the procedural framework for designating routes and areas for OSV use consistent with E.O. 11644, as amended, and the March 29, 2013, court order and will not have any direct effect on grooming programs or cooperative agreements for grooming among private organizations, counties, and the Forest Service.

Comment: Some respondents stated that the Forest Service should remove the OSV exemption in subpart B to provide consistency between winter and summer travel management. Other respondents stated that OSVs are motor vehicles and therefore should be subject to the same regulation as other types of motor vehicles, such as OHVs. Some respondents stated that the OSV exemption in subpart B is appropriate given the differences between OSVs and other types of motor vehicles, including OHVs.

Response: The Department believes that there are enough differences between OSV use and other types of motor vehicle use to justify regulation of OSV use in a separate subpart. As stated above, the difference between management of OSV use and management of other types of motor vehicle use on NFS lands stems from differences in their associated settings, activities, environmental impacts, and public preferences. For example, impacts from wheeled motor vehicles traveling directly on the soil differ from impacts from motor vehicles with tracks or skis traveling over snow. Therefore, the Department is retaining the OSV exemption in subpart B of the TMR.

Comment: Some respondents stated that the Forest Service should limit OSV use off established trails to minimize damage to habitat for species like bear, ermine, dusky grouse, lynx, mountain goat, bighorn sheep, and snowshoe hare and that OSV use on trails should be limited to areas with no ecological value to ensure these species have adequate habitat. Other respondents stated that there is no credible evidence that OSVs cause resource damage or have an impact on wildlife and that the proposed rule should be rewritten to reflect that fact.

Response: The National Forests and Grasslands are managed by law for multiple uses, including wildlife, timber, grazing, mining, and outdoor recreation. These uses must be balanced, rather than given preference. OSV use may have an impact on NFS resources and wildlife. Managers must apply the so-called “minimization criteria” in § 212.55 when determining which roads, trails and areas to authorize for OSV use in order to minimize effects on National Forest resources including wildlife. These criteria do not change with this rule. The Department believes that National Forests and Grasslands should provide access for both motorized and non-motorized uses in a manner that is environmentally sustainable over the long term. The Department believes that the analysis of effects to wildlife and other NFS resources for designations for motor vehicle use, including OSV use, are best made at the local level, in coordination with Federal, State, Tribal, and local governments and with appropriate public involvement, as provided for in this final rule.

Comment: Some respondents stated that allowing OSV use everywhere hurts dedicated lynx and wolverine habitat. Some respondents stated that a large portion of wolverine habitat in North America is under Federal ownership and should be protected. These respondents requested that the final rule fully evaluate and disclose the effects of dispersed recreation on wolverines and their habitat and, where necessary, minimize the harm from those activities. These respondents also stated that the final rule should require the Forest Service to consult with the U.S. Fish and Wildlife Service to determine best mitigation practices regarding wolverines. Some respondents stated that OSV use compact snow, which gives larger predators like the coyote easier access to areas previously available to only smaller predators like the lynx and results in increased competition during sensitive lifecycles. Other respondents stated that there are fewer species in the winter season than in the summer, but that their protection is still important. Some respondents stated that Responsible Officials should be required to use the best available technology (BAT), as determined by the U.S. Environmental Protection Agency, in assessing impacts of OSV use in areas with sensitive species or special features. Some respondents stated that wildlife impacts from OSV use would be minimal because OSV users tend to favor higher elevations and because wildlife has typically migrated to lower elevations where conditions are more favorable.

Response: The impact of OSV use on specific species, including threatened and endangered species, in specific locations is beyond the scope of this final rule. This final rule addresses the procedural framework for making OSV use designations, rather than OSV use designations themselves. OSV use designations are made at the local level, with appropriate public input and coordination with Federal, State, Tribal, and local governments based on the criteria in the final rule (§§ 212.55 and 212.81(d)). The final rule does not provide for designating routes and areas for OSV use everywhere it may occur. Rather, the final rule provides for designation of a system of routes and areas where OSV use is allowed and for prohibition of OSV use that is inconsistent with the designations.

The final rule will not have any effect on the ground until designation of roads, trails, and areas for OSV use is complete for a particular administrative unit or Ranger District, with appropriate public involvement and coordination with Federal, State, Tribal, and local governments. Designation decisions at the local level will be accompanied by appropriate consideration of potential impacts on threatened and endangered species. In making designations for OSV use, the Forest Service will consult with the U.S. Fish and Wildlife Service, as appropriate, under Section 7 of the Endangered Species Act. BAT is not required for assessing impacts from motor vehicle use. The Forest Service encourages public participation in local OSV decision making.

Comment: Some respondents noted that OSVs are heavy and compact the snow, leaving deep tracks that make slopes unusable and dangerous for cross-country skiing. These respondents stated that this impact could be avoided by separating motorized and non-motorized uses. Some respondents commented that motorized and non-motorized uses should be located in separate staging areas, where possible, to limit use conflicts. Some respondents believed that snow pack from track compaction decreases snow melt. Other respondents stated that OSVs come in direct contact with the soil when OSV users search for adequate snow and that OSVs come in contact with the top of vegetation, which has an impact on the soil and vegetation. Some respondents stated that motorized and non-motorized recreational activities are legitimate uses of Federal land, but they should be separated to ensure safe enjoyment for all involved. Other respondents believed that OSV use is incompatible with non-motorized uses and should be excluded from all NFS lands or should be restricted to trails and subject to a licensing requirement. Some respondents commented that the Responsible Official should have to address OSV use in the same manner as other motorized recreational uses on NFS lands. These respondents reasoned that the issue of use conflicts between motorized and non-motorized recreation is the same regardless of the level of snowfall or the season.

Other respondents stated that OSVs are loud and that their noise carries, in some cases for several miles, which disturbs the quiet recreational experience of non-motorized users. Some respondents believed that OSVs compromise air and water quality, the landscape, and the quiet of the natural forest setting. Some respondents believed that OSV users leave behind trash and litter that adversely affects other users. Other respondents stated that the Forest Service should endorse the minimization of OSV use in the backcountry and that mechanized travel spoils the wilderness experience.

Some respondents stated that the proposed rule should protect the quiet use of NFS lands, as this use predates any motorized use. Some respondents stated that the Forest Service failed to address non-motorized winter recreational uses like skiing and snowshoeing, which predate OSV use, and that these non-motorized uses are most likely to be heavily impacted by OSV use and should be addressed. Some respondents commented that it is difficult for non-motorized winter users to reach the backcountry, but when they do and find it overrun with OSVs, it can detract from their experience. These respondents believed that motorized winter uses should be limited to certain areas so that non-motorized winter users can seek solitude and quiet elsewhere. Other respondents stated that advances in technology have allowed OSVs to go places they never have before, further decreasing the areas available for quiet recreation. Some respondents believed that non-motorized uses should be given priority over motorized uses when undertaking winter travel management planning.

Some respondents believed that OSVs with two-cycle motors are obsolete and environmentally wasteful and should be banned in favor of modern four-cycle motors. These respondents noted that the exhaust from an OSV not only smells but lingers in the area for several hours.

Other respondents stated that OSVs do not come in direct contact with the ground and often ride on a cushion of snow several feet thick, and that when the snow melts, the tracks are washed away. Some respondents believed that OSVs on NFS roads do little to no harm compared to other motor vehicles and therefore should not be restricted. Other respondents believed that motorized winter use is an appropriate use of NFS lands and should not be limited in favor of non-motorized winter uses. Some respondents suggested that winter travel planning be based on an equitable process that eliminates the perceived bias that the OSV community has dealt with for many years. These respondents stated that non-motorized users like cross-country and backcountry skiers, snowshoe enthusiasts, split boarders, and dog-sledders have unlimited access to the backcountry, including areas that they could not realistically reach without the aid of an OSV, while OSVs are limited to small fractions of the National Forests and Grasslands. These respondents believed that limiting OSVs to small areas would result in more use conflicts and greater environmental impacts.

Response: The site specific potential effects of OSV use on non-motorized winter recreational use and natural resources and the designation of certain types of OSVs in specific locations are beyond the scope of this final rule. This final rule addresses the procedural framework for making OSV use designations, rather than OSV use designations themselves. OSV use designations are made at the local level, with appropriate public input and coordination with Federal, State, Tribal, and local governments based on the criteria in the final rule (§§ 212.55 and 212.81(d)). The same criteria are applied to designations for OSV use and designations for other types of motor vehicle use. Potential effects of OSV use on non-motorized winter recreational use and natural resources are addressed in the procedural framework for OSV use designations in the final rule. The criteria for designation of roads, trails, and areas for OSV use in the final rule require the Responsible Official to consider, with the objective of minimizing, effects of OSV use on natural resources and conflicts between OSV use and existing or proposed recreational uses of NFS lands, including non-motorized winter recreational uses. In addition, the criteria for designation of routes and areas for OSV use require the Responsible Official to consider the compatibility of OSV use with existing conditions in populated areas, taking into account sound, emissions, and other factors (§§ 212.55(b) and 212.81(d) of the final rule).

The Department believes that National Forests and Grasslands should provide access for both motorized and non-motorized uses in a manner that is environmentally sustainable over the long term. The NFS is not reserved for the exclusive use of any one group, nor must every use be accommodated on every acre. It is entirely appropriate for different areas of the NFS to provide different opportunities for recreation. The Department believes that designations for motor vehicle use, including OSV use, are best made at the local level, in coordination with Federal, State, Tribal, and local governments and with appropriate public input, as provided for in this final rule. The Forest Service encourages public involvement in local OSV decisions.

The Department agrees that OSVs have different impacts from other types of motor vehicles that run on the ground. However, per EO 11644, as amended, and the court order, the Forest Service must designate those routes and areas where OSV use is allowed and those routes and areas where OSV use is prohibited.

Comment: Some respondents believe that increased regulation of OSV use will have a negative impact on small-town economies that depend on OSV users for income.

Response: The final rule revises the procedural framework for local decision-making regarding OSV use and will not have any effect until designation of roads, trails, and areas for OSV use is complete for a particular administrative unit or Ranger District, with appropriate public involvement and coordination with Federal, State, Tribal, and local governments. Even after OSV designations are complete, the final rule will have no direct impact on small business entities because designations merely will regulate where OSV use will occur on NFS roads, on NFS trails, and in areas on NFS lands. The Department has determined that the final rule will not have a significant economic impact on a substantial number of small entities because the final rule will not impose recordkeeping requirements on them, nor will it affect their competitive position in relation to large entities or their cash flow, liquidity, or ability to remain in the market.

Comment: Some respondents stated that non-motorized winter users of NFS lands use staging areas and trails that in many cases have been plowed or groomed with revenue from OSV users; that non-motorized users do not pay for plowed trailhead parking or groomed trails but want increased access to these areas; and that non-motorized users should be required to share the cost of plowing trailhead parking and grooming trails by paying for a trail pass or parking pass or paying a use fee. Some respondents stated that if non-motorized users want a separate system of trails, they should have to pay a separate fee to fund maintenance of those trails. Other respondents stated that the motorized recreation community has many partnerships in place to maintain and improve existing trails that are used by both motorized and non-motorized users.

Response: The extent to which the costs of plowing trailhead parking and grooming trails are borne by users is beyond the scope of this rulemaking. The Forest Service does not typically plow trailhead parking or groom trails and does not run programs that generate revenue to pay for these services. States or private organizations typically plow trailhead parking and groom trails using revenue derived from the States' sales tax or the sale of stickers issued by the States. The final rule revises the procedural framework for local decision-making regarding OSV use and will not have any effect until designation of roads, trails, and areas is complete for a particular administrative unit or Ranger District, with appropriate public involvement and in coordination with Federal, State, Tribal, and local governments. The Forest Service's authority to charge and retain fees for use of recreational facilities and services is contained in the Federal Lands Recreation Enhancement Act (16 U.S.C. 6801-6814), which is beyond the scope of this rulemaking. The Department agrees that cooperators make valuable contributions to maintenance and improvement of NFS trails for both motorized and non-motorized users.

Comment: The demographics used in the proposed rule are outdated and should be updated to reflect current OSV use.

Response: The demographics for OSV use used in the proposed rule are provided for background purposes and date from a 2012 Resource Planning Assessment. These figures are current, as figures in Resource Planning Assessments conducted under the Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA) (16 U.S.C. 1600 note, 1600-1614) are normally updated every 5 to 10 years. The increase in cross-country skiing between 1992-93 and 1999-2000 is 2.6 million visits, while the increase in OSV use for those periods is 6.1 million visits.

Comment: The percentages used in the proposed rule to demonstrate an increase in recreational activities like bird-watching and fishing can be misleading; the Forest Service should replace them with actual numbers.

Response: This information was provided for background purposes and came from research data in “Outdoor Recreation Trends and Futures, a Technical Document Supporting the Forest Service 2010 RPA Assessment,” p. 135 (H. Cordell, 2012) at http://www.srs.fs.usda.gov/pubs/gtr/gtr_srs150.pdf.

Comment: Some respondents stated that wilderness areas have increased steadily over the last 40 years, which has limited all forms of motorized recreation and given more access to non-motorized uses. These respondents stated that Federal lands should be open to all members of the public.

Response: This final rule does not encourage or discourage motor vehicle use, but rather requires designation of roads, trails, and areas for OSV use. The Department believes that a well-designed system of routes and areas designated for OSV use can reduce maintenance needs and environmental damage while enhancing the recreational experience for all users, both motorized and non-motorized.

Comment: Some respondents commented that motor vehicle access for the elderly and persons with disabilities should not be limited.

Response: Under section 504 of the Rehabilitation Act of 1973, no person with a disability can be denied participation in a Federal program that is available to all other people solely because of his or her disability. In conformance with section 504, wheelchairs are welcome on all NFS lands that are open to foot travel and are specifically exempted from the definition of a motor vehicle in § 212.1 of the TMR, even if they are battery-powered. However, there is no legal requirement to allow people with disabilities to use OSVs on NFS roads, on NFS trails, and in areas on NFS lands where OSV use is prohibited because such an exemption could fundamentally alter the nature of the Forest Service's travel management program (7 CFR 15e.103). Reasonable restrictions on OSV use, applied consistently to everyone, are not discriminatory.

Comment: Some respondents believed that the Forest Service should remove references to “play areas” from the final rule because all types of terrain are conducive to OSV travel and recreation.

Response: Like the proposed rule, the final rule does not include a reference to “play areas.”

Comment: Some respondents commented that designation of areas as big as a Ranger District would not comply with the language or intent of EO 11644, as amended. Some respondents commented that the proposed definition for an area would not resolve use conflicts and would only exacerbate them. One respondent suggested that designated areas should be limited to watersheds no larger than those assigned hydrologic unit code 6 by the U.S. Geological Survey. Other respondents supported the proposed definition of an area.

Response: E.O. 11644, as amended, does not define the term “area.” The amended definition for “area” in the proposed and final rules is based on the characteristics of OSV use, which presents a distinct suite of issues. An OSV traveling over snow has different impacts on natural resource values than motor vehicles traveling over the ground. Unlike other motor vehicles traveling cross-country, OSVs traveling cross-country generally do not create a permanent trail or have a direct impact on soil and ground vegetation. However, OSV use may have an impact on NFS resources and wildlife. The Department anticipates that it may be appropriate to designate areas for cross-country OSV use and that it may be appropriate to designate larger areas for cross-country OSV use than for cross-country use by other types of motor vehicles. Accordingly, the definition for an area in the proposed and final rules exempts OSVs from the statement that in most cases an area will be much smaller than a Ranger District. The definition of “area” in the proposed and final rules does not provide that areas designated for OSV use will necessarily be as large as a Ranger District, but rather that they do not have to be much smaller than a Ranger District. As with evaluation of areas proposed for other types of motor vehicle use, proposed OSV areas will be subject to the minimization criteria in § 212.55(b)(1)-(4), pursuant to § 212.81(d) of the final rule.

Comment: Some respondents commented that the definition of the term “over-snow vehicle” needs to be expanded to allow for modified vehicles, such as snowcats and fat tire bicycles, to be used on the trail system if permitted by State law.

Response: Regulation of non-motorized uses such as bicycle use is beyond the scope of this rulemaking. The definition of “over-snow vehicle” is also beyond the scope of this rulemaking, as it was not proposed for revision. The Department does not believe it is necessary or appropriate to revise the definition of “over-snow vehicle” at this time.

Comment: Some respondents believed that local officials should be given the discretion to designate a system of routes and areas where OSV use is allowed unless prohibited or a system of routes and areas where OSV use is prohibited unless allowed.

Some respondents believed that the Responsible Official should not have the discretion to designate a system of routes and areas where OSV use is allowed unless prohibited or a system of routes and areas where OSV use is prohibited unless allowed. These respondents stated that winter travel management planning should be more consistent with travel management planning in other seasons by producing a system of routes and areas where OSV use is prohibited unless allowed. These respondents noted that this approach is easily understood by the public and is more enforceable. Other respondents stated that where appropriate (for example, where no natural resource issues are identified), the Forest Service should be consistent regarding designations for OSV use across District, Forest, and Regional boundaries. These respondents believed that District, Forest, and Regional boundaries can be confusing to the public and that consistent designations for OSV use would improve public understanding as well as provide consistent opportunities for OSV use.

Other respondents commented that the proposed rule violates E.O. 11644, as amended, and the March 29, 2013, court decision by continuing to allow designation of a system that is open unless closed to OSV use, which circumvents analysis of impacts from OSV use. Other respondents commented that, to be consistent with the E.O. 11644, as amended, the Agency must designate trails and areas where OSV use is allowed and trails and areas where OSV use is not allowed.

Response: In its March 29, 2013, ruling, the Federal District Court held that under E.O. 11644, as amended, the Forest Service has the discretion to determine how to regulate OSV use, but that the Agency does not have the discretion to determine whether it will regulate OSV use. The proposed rule is consistent with the court's ruling in that it requires the Agency to designate routes and areas for OSV use, but gives the Responsible Official the discretion to determine whether to designate a system of routes and areas that is open unless designated closed to OSV use or a system of routes and areas that is closed unless designated open for OSV use. In either case, the decision would be based on an analysis of the impacts from the proposed designations and anticipated uses in accordance with subpart B, as modified in subpart C to provide for consistency in terminology.

The Department agrees that it would be clearer for the public and would enhance consistency in travel management planning and decision-making if the Responsible Official were required to designate a system of routes and areas where OSV use is prohibited unless allowed. Accordingly, the Department has revised § 212.81(a) in the final rule to state that, subject to specified exemptions, OSV use on NFS roads, on NFS trails, and in areas on NFS lands must be designated by the Responsible Official on administrative units or Ranger Districts, or parts of administrative units or Ranger Districts, where snowfall is adequate for that use to occur and, as appropriate, must be designated by class of vehicle and time of year. Under § 261.14 of the final rule, OSV use that is not in accordance with the designations reflected on an OSV use map is prohibited.

The Department has removed the definition of “designated road, trail, or area” from § 212.1, as with promulgation of this final rule it is no longer accurate to define designated routes and areas as those that are designated for motor vehicle use pursuant to § 212.51 on a motor vehicle use map. Under this final rule, routes and areas will also be designated for OSV use pursuant to § 212.81 on an OSV use map.

Comment: Most respondents commented that OSV designation decisions should be made at the local level, not at the national level. Some respondents commented that the local Forest Service official should retain the discretion to manage OSV use to address local conditions.

Many respondents stated that whether there is adequate snowfall for OSV use should be determined at the local level and should not be based on specific starting and ending dates because of the unpredictability of snowfall. Some respondents suggested that adequate snowfall be determined by a minimum depth, rather than a specific timeframe. Other respondents suggested that OSV use be zoned by timeframe as well as by location.

Response: The Department agrees that OSV designation decisions, including adequacy of snowfall for OSV use, should be made at the local level, as reflected in the final rule. Designation of OSV use in specific locations, including determination of where snowfall is adequate for OSV use to occur, is beyond the scope of this rule. The final rule revises the procedural framework for local decision-making regarding OSV use, utilizing the criteria for designation of roads, trails, and areas (§§ 212.55 and 212.81(d) of the final rule).

Section 212.81(a) of the proposed rule provides, subject to certain exceptions, that OSV use on NFS roads, on NFS trails, and in areas on NFS lands must be designated on administrative units and Ranger Districts, or parts of those units and Districts, where snowfall is adequate for that use to occur. The Forest Service intended the phrase, “where snowfall is adequate for that use to occur,” to have two applications. First, the Agency intended the phrase to exempt units like the National Forests of Florida that never have enough snowfall for OSV use to occur from the designation requirement in § 212.81(a). Second, where snowfall may occur, but is not consistently adequate for OSV use to occur, the Agency intended the phrase to provide for the Responsible Official to determine when snowfall is adequate in designating OSV use. To clarify these intentions, the Department has added the phrase, “and if appropriate, shall be designated by class of vehicle and time of year,” after the phrase, “where snowfall is adequate for that use to occur.” The Department has included the phrase, “class of vehicle,” to enhance consistency with subpart B, in accordance with the preceding comment and response, and to allow Responsible Officials to take into account changing technology in OSVs. The Department has included the qualifier, “as appropriate,” because it may not always be appropriate or necessary to designate OSV use by class of vehicle or time of year. The Department believes that determinations of when snowfall is adequate for OSV to occur should be based on local conditions, including, as appropriate, variability in the weather.

Comment: Many respondents commented that the proposed rule recognizes the difference between OSV use in the East and OSV use in the Midwest and West. These respondents stated that cross-country travel is the preferred method of OSV use in the Midwest and West and should be allowed to continue under the final rule. Other respondents believed that OSV use in the West should not be limited to designated trails and that experienced riders would not ride off route in an area that is not conducive to OSV use because they are aware that riding in this type of area would damage the expensive tracks on OSVs. Some respondents stated that OSVs should be given the same opportunity to travel cross-country as skiers and snowshoers. Some respondents suggested that the ability to travel cross-country on an OSV is what brings people to snow-covered areas and that by limiting OSV use to routes, the Forest Service would decrease the number of people who will visit these areas. Some respondents believed that the proposed rule recognizes that OSV use is a legitimate use on NFS lands and that OSV use should not be limited to designated trails and roads, but should also be allowed to occur in open areas. These respondents stated that the proposed rule should be implemented as written.

Other respondents believed that cross-country OSV use should not be allowed because OSV users can quickly become lost and end up in a non-motorized area. Some respondents suggested that areas 3 to 5 square miles beyond trailheads and parking lots should be closed to cross-country OSV use during the snow months. These respondents believed that this approach would allow OSVs to access the backcountry while leaving the more accessible areas to snowshoers and cross-country skiers.

Response: The Department agrees that OSV use presents a distinct suite of issues. An OSV traveling over snow has different impacts on natural resource values than motor vehicles traveling over the ground. Unlike other motor vehicles traveling cross-country, OSVs traveling cross-country generally do not create a permanent trail or have a direct impact on soil and ground vegetation. Therefore, the Department anticipates that it may be appropriate to designate areas for cross-country OSV use and that it may be appropriate to designate larger areas for cross-country OSV use than for cross-country use by other types of motor vehicles. Accordingly, the definition for an area in the proposed and final rules exempts OSVs from the statement that in most cases an area will be much smaller than a Ranger District. Whether specific areas should be designated for OSV use is beyond the scope of this final rule. This final rule addresses the procedural framework for making OSV use designations, rather than OSV use designations themselves. OSV use designations are made at the local level, with appropriate public input and coordination with Federal, State, Tribal, and local governments, based on the criteria in the final rule (§§ 212.55 and 212.81(d)).

Comment: Some respondents commented that the proposed rule should restrict OSV use to designated routes and prohibit cross-country OSV use near wilderness and that the routes should be designated so as to minimize impacts on wilderness and wildlife and to avoid impairment of the visitor experience in wilderness.

Response: The Department does not believe it would be appropriate for this rule to restrict OSV use to designated routes and prohibit cross-country OSV use near wilderness. Responsible officials will consider impacts of OSV use on nearby wilderness and wildlife during the designation process by applying the minimization criteria of 212.55 to minimize effects to National Forest resources and to other users.

Comment: Some respondents commented that Forest Service units will need to conduct site-specific analysis for all resources within an area to be designated for OSV use, which would require a “hard look” under the National Environmental Policy Act (NEPA). These respondents believed that the NEPA process for designating an area for OSV use could be onerous. Other respondents commented that NEPA documentation for winter travel management decisions does not adequately reflect how the Forest Service applied the minimization criteria in the TMR in those decisions and is inconsistent with the TMR.

Response: Regulations implementing NEPA are issued by the Council on Environmental Quality and are found at 40 CFR part 1500. Agency direction on NEPA compliance is found in 36 CFR part 220 and FSH 1909.15. The Department believes that the scope, content, and documentation of NEPA analysis associated with designating routes and areas for OSV use will ultimately depend on site-specific factors, including the local history of travel planning, public input, and environmental impacts at the local level. Therefore, the Department is not addressing NEPA compliance in this final rule. The Responsible Official will address application of the minimization criteria pursuant to §§ 212.55(b)(1)-(4) and 212.81(d) of the final rule in documentation for OSV designation decisions.

Comment: Some respondents stated that the Forest Service should clarify in the final rule the need to apply the minimization criteria in the TMR to trails within areas that are proposed for designation for OSV use. Other respondents commented that by failing to provide for analysis of trails within areas, the proposed rule does not address the requirement to show that OSV use on those routes will not have a negative impact on the environment or other uses.

Response: The Department believes that if an area is analyzed appropriately under NEPA for OSV use utilizing the criteria established in the final rule (§§ 212.55 and 212.81(d)), there is no need for additional analysis to evaluate effects of OSV use on specific trails in that area, which are typically covered by snow. As units analyze an area, impacts on the environment and other users will be minimized within that area as specified in § 212.55(b)(1)-(4). Consistent with the EOs, the proposed and final rules do not require the Forest Service to show the absence of any adverse impacts from OSV use on the environment or other uses. Rather, the proposed and final rules require the Agency to consider, with the objective of minimizing, certain environmental impacts and use conflicts (§ 212.55(b)(1)-(4)).

Comment: Some respondents commented that there is a master memorandum of understanding between the Forest Service's Alaska Region and the Alaska Department of Fish and Game (ADF&G) and that ADF&G has authority to regulate fish and wildlife populations on NFS lands, except to the extent that authority is superseded by Federal law. These respondents also noted that, with regard to designated wilderness in Alaska, administrative use of OSVs by governmental agencies is allowed pursuant to the Alaska National Interest Lands Conservation Act (ANILCA) and Forest Service Manual Supplement no. R-10 2300-2003-2, 2326.1, Conditions Under Which Use May Be Approved. These respondents suggested amending the exemption from OSV designations in proposed § 212.81(a)(1) for limited administrative use by the Forest Service to add administrative use by State fish and wildlife management agencies. These respondents believed that an exemption should be granted for all administrative use because the qualifier “limited” is not defined and is redundant, since Agency administrative field work and travel are presumably necessary rather than superfluous.

Response: The Department disagrees that the exemption from OSV designations in § 212.81(a)(1) of the proposed rule and from the prohibition in § 261.14(a) of the TMR for limited administrative use by the Forest Service should be revised to add limited administrative use by State fish and wildlife management agencies. The Department has retained the qualifier “limited administrative use” in the exemption. A broad exemption from OSV designations could undercut the purposes of the final rule. The Department is not making the requested revision so as to stay consistent with the corresponding exemption in §§ 212.51(a)(4) and 261.13(d) of the TMR. The Forest Service has the ability to authorize OSV use by State fish and wildlife management agencies on a case-by-case basis.

Comment: Some respondents stated that there should be a process for administrative review of OSV designation decisions prior to their enforcement.

Response: OSV designation decisions that are documented with a decision notice or record of decision associated with an environmental assessment or environmental impact statement are subject to the predecisional objection process in 36 CFR part 218.

Comment: Some respondents believed that all areas on NFS lands that are open to OSV use should remain that way.

Other respondents stated that the final rule should allow areas and routes to be designated for OSV use only after comprehensive analysis has been made available for public review and comment.

Response: The final rule's prohibition on OSV use off the designated system (§ 261.14) goes into effect on an administrative unit or a Ranger District once that unit or District has designated those NFS roads, NFS trails, and areas on NFS lands that are open to OSV use and published an OSV use map identifying those roads, trails, and areas (§ 212.81(c) of the final rule). Until designations for a unit or District are complete and an OSV use map identifying those designations is published, existing OSV travel management policies, restrictions, and orders remain in effect. Use of NFS roads, NFS trails, and areas on NFS lands consistent with current OSV travel management decisions and management objectives may continue. Forest Supervisors may continue to issue travel management orders pursuant to part 261, subpart B, and impose temporary, emergency closures based on a determination of considerable adverse effects pursuant to §§ 212.52(b)(2) and 212.81(d) of the final rule. Under §§ 212.80(b) and 212.81(b) of the final rule, previous administrative decisions that allow, restrict, or prohibit OSV use on NFS roads and NFS trails or in areas on NFS lands and that were made under other authorities may remain in effect.

As stated above, units or Districts that have completed OSV use designations under other authorities and including public involvement do not have to revisit them and may, with public notice but no further analysis or decision-making, establish those decisions as the designation pursuant to this final rule for the unit or District, effective upon publication of an OSV use map.

In that situation, the only substantive change effected by this final rule will be enforcement of the restrictions pursuant to the prohibition in § 261.14, rather than pursuant to an order issued under part 261, subpart B. Section 212.81(b) of the final rule provides that no further public involvement is required in this special case. Alternatively, Responsible Officials may revise OSV designations under §§ 212.54 and 212.81(d) of the final rule.

New OSV designation decisions will be subject to the procedural requirements in the final rule, including appropriate public involvement (§§ 212.52(a) and 212.81(d) of the final rule). Nothing in this final rule requires reconsideration of any previous administrative decisions that allow, restrict, or prohibit OSV use on NFS roads and NFS trails or in areas on NFS lands and that were made under other authorities, including decisions made in land management plans and travel plans. Section 212.80(b) of the final rule provides that these decisions may be incorporated into OSV designations made pursuant to this final rule.

Comment: Some respondents suggested that the Forest Service establish an expiration date for all previous OSV use decisions to ensure that an administrative unit or a Ranger District is not relying on OSV use decisions or winter travel plans that are woefully out of date. Other respondents stated that previous OSV use decisions should not be given undue weight, and that just because they were made under previous authorities does not mean that they should not be reviewed. Some respondents suggested that all existing OSV use decisions be reviewed for compliance with the minimization criteria in the TMR and E.O. 11644, as amended. Other respondents believed that if previous OSV use decisions addressed the minimization criteria in E.O. 11644, as amended, and were made with public involvement, they should not have to be reviewed, but that previous OSV use decisions that do not meet these criteria should have to be reviewed under the proposed rule. Some respondents suggested that the Forest Service retain only previous OSV use decisions that were based on application of the minimization criteria, as required by E.O. 11644, and that all other previous OSV use decisions are deemed invalid.

Some respondents believed that previous OSV use decisions should not have to be reviewed, as they were made in accordance with the legal authorities in effect at that time, and as the Forest Service does not have the budget or personnel to review all previous OSV use decisions while making new OSV use decisions. These respondents believed that requiring review of all previous OSV use decisions would result in a backlog that would negatively affect all winter recreationists.

Response: The Department does not believe that previous OSV use decisions made under other authorities should be subject to an expiration date or a requirement for review. As with prior administrative decisions governing other types of motor vehicle use, nothing in this final rule requires reconsideration of any previous administrative decisions that allow, restrict, or prohibit OSV use on NFS roads and NFS trails or in areas on NFS lands and that were made under other authorities, including decisions made in land management plans and travel plans. To the contrary, §§ 212.80(b) and 212.81(b) of the final rule provide for these decisions to be given effect. The Department believes that previous OSV use decisions made under other authorities are valid and that requiring review of previous OSV use decisions would be inefficient and disrespectful of public involvement in past OSV use decision-making. The final rule recognizes that designations of roads, trails, and areas for OSV use are not permanent. Unforeseen environmental impacts, changes in public demand, route construction, and monitoring conducted under §§ 212.57 and 212.81(d) of the final rule may lead Responsible Officials to consider revising OSV designations under §§ 212.54 and 212.81(d) of the final rule.

Comment: Some respondents stated that the specific requirements for management of OSV use in E.O. 11644, as amended, as reinforced by the March 29, 2013, court ruling, should be incorporated into the proposed rule.

Response: The Department agrees and believes that the final rule is consistent with E.O. 11644, as amended, and the March 29, 2013, court ruling in requiring the Responsible Official to designate those routes and areas where OSV use is allowed and in prohibiting OSV use off the designated system.

Comment: Some respondents suggested expanding the criterion to consider conflicts between motorized and non-motorized uses under § 212.55(b)(3) in making OSV designations to state that (1) remote lands that are not readily reachable by non-motorized winter recreationists but are readily reachable by OSV users should not be counted against OSV users; (2) OSV users should be credited for maintaining restrooms, parking facilities, and trails that benefit non-motorized recreationists; and (3) lands that are open to OSV use generally remain open to non-motorized winter recreation and so provide value to non-motorized recreationists.

Response: The Department does not believe that it would be appropriate to make this revision. Section 212.55(b)(3) of the TMR applies to all types of motor vehicle use, including OSV use, and tracks the corresponding wording in Section 3(a)(3) of E.O. 11644, as amended. Decisions regarding where OSV use may occur are best made at the local level based on site-specific conditions and with appropriate public involvement, including input from motorized and non-motorized users and other interested parties.

Comment: Some respondents commented that the final rule should require the Responsible Official to coordinate with State and local officials before making any preliminary or final OSV designation decision.

Response: The Department agrees that travel management decisions should be coordinated with appropriate Federal, State, Tribal, county, and other local governments, as provided for in §§ 212.53 and 212.81(d) of the final rule.

Comment: Some respondents commented that the proposed rule appropriately requires the Responsible Official to recognize Sections 811(b) and 1110(a) of ANILCA when implementing the rule in Alaska and that the proposed rule should reference OSV use authorized under other applicable provisions of ANILCA.

Response: The Department declines to make this change, as sections 811(b) and 1110(a) are the only provisions in ANILCA that directly address OSV use.

Comment: Some respondents stated that the OSV use map, a requirement under the proposed rule, must have sufficient detail in order to be useful, and that the final rule should identify more clearly what should be included on an OSV use map.

Response: The Forest Service plans to develop a standard national format for OSV use maps issued under this final rule. The Forest Service also plans to issue additional travel management guidance in its sign handbook to enhance consistency in content and use of standard interagency symbols in signs. In addition, the Department has added a definition for “over-snow vehicle use map” to 36 CFR 212.1 and has moved the requirement for an OSV use map in subpart C to a separate section, § 212.81(c) of the final rule, to underscore that this requirement is separate from the requirement for a motor vehicle use map under subpart B. Consistent with § 212.81(a) of the final rule, § 212.81(c) of the final rule provides for an OSV use map to display the classes of vehicles and the time of year designated for OSV use, if applicable.

Comment: Some respondents stated that NFS roads, NFS trails, and areas on NFS lands designated for OSV use should be clearly marked. Other respondents believed that restrictions on OSV use should be more clearly relayed to the public so incidents of OSV use off the designated system could be reported to the proper authorities. These respondents recommended increasing signage around areas designated for OSV use to increase awareness of these designations by both motorized and non-motorized users.

Response: The Department declines to adopt this suggestion. The Forest Service has found that posting routes as open or closed to particular uses has not always been effective in controlling use, partly because new unauthorized routes continue to appear even in areas that are closed to motor vehicle use. Requiring each undesignated route and area to be posted as closed would be an unreasonable and unnecessary burden on Agency resources and would tend to defeat the purpose of the final rule. Signs have also proven to be difficult to maintain and subject to vandalism. The final rule places more responsibility on users to get OSV use maps from Forest Service offices or Web sites and to remain on routes and in areas designated for OSV use. This approach is consistent with subpart B of the TMR.

Comment: Some respondents suggested that the Forest Service require a special use permit for or prohibit activities and events involving OSV use on NFS lands. Other respondents commented that day use permits should be required for OSV use to limit impacts on natural resources and non-motorized users.

Response: Regulation of activities and events involving OSV use on NFS lands is beyond the scope of this rulemaking, which involves designation of routes and areas for OSV use. OSV use designations are made at the local level, with appropriate public input and coordination with Federal, State, Tribal, and local governments based on the criteria in the final rule (§§ 212.55 and 212.81(d)). The Department does not believe it would be appropriate to establish a prohibition on activities and events involving OSV use, which is a legitimate use of NFS lands. Permit requirements for OSV use are governed by the Federal Lands Recreation Enhancement Act (16 U.S.C. 6802(h)).

This final rule has been reviewed under USDA procedures and E.O. 12866 on regulatory planning and review. The Office of Management and Budget (OMB) has determined that this final rule is nonsignificant and is therefore not subject to OMB review under E.O. 12866.

This final rule requires designation at the field level, with appropriate public input, of those NFS roads, NFS trails, and areas on NFS lands that are open to OSV use. This final rule will have no effect on users or on the environment until designation of NFS roads, NFS trails, and areas on NFS lands for OSV use is complete for a particular administrative unit or Ranger District, with appropriate public involvement. Forest Service regulations at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or environmental impact statement “rules, regulations, or policies to establish service-wide administrative procedures, program processes, or instructions.” The Department has concluded that this final rule falls within this category of actions and that no extraordinary circumstances exist which would require preparation of an environmental assessment or environmental impact statement.

The Department has considered this final rule in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq. ). This final rule will not directly affect small businesses, small organizations, and small governmental entities. The Department has determined that this final rule will not have a significant economic impact on a substantial number of small entities pursuant to the Regulatory Flexibility Act because it will not impose recordkeeping requirements on them; it will not affect their competitive position in relation to large entities; and it will not affect their cash flow, liquidity, or ability to remain in the market.

The Department has considered this final rule under the requirements of E.O. 13132 on federalism and has determined that the final rule conforms with the federalism principles set out in this E.O. The final rule will not impose any compliance costs on the States and will not have substantial direct effects on the States, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the Department has determined that no further assessment of federalism implications is necessary at this time.

Moreover, this final rule does not have Tribal implications as defined by E.O. 13175, entitled “Consultation and Coordination with Indian Tribal Governments,” and therefore advance consultation with Tribes is not required.

The Department has analyzed this final rule in accordance with the principles and criteria contained in E.O. 12630. The Department has determined that this final rule will not pose the risk of a taking of private property.

This final rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 U.S.C. 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and its implementing regulations at 5 CFR part 1320 do not apply.

The Department has reviewed this final rule under E.O. 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” The Department has determined that this final rule does not constitute a significant energy action as defined in the E.O.

The Department has reviewed this final rule under E.O. 12988 on civil justice reform. After adaptation of this final rule, (1) all State and local laws and regulations that conflict with this final rule or that impede its full implementation will be preempted; (2) no retroactive effect will be given to this final rule; and (3) it will not require administrative proceedings before parties may file suit in court challenging its provisions.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the Department has assessed the effects of this final rule on State, Tribal, and local governments and the private sector. This final rule will not compel the expenditure of $100 million or more by any State, Tribal, or local government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.

Therefore, for the reasons set out in the preamble, the Forest Service amends parts 212 and 261 of title 36 of the Code of Federal Regulations as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under section 408(g) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 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-2014-0643 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 March 30, 2015. 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 (excluding any Confidential Business Information (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 the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0643, 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 CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (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.html.

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

EPA, on its own initiative, in accordance with FFDCA sections 408(e) and 408(l ) (6) of, 21 U.S.C. 346a(e) and 346a(1)(6), is establishing time-limited tolerances for residues of sulfoxaflor, N -[methyloxido[1-[6-(trifluoromethyl)-3-pyridinyl]ethyl]-λ 4 -sulfanylidene]cyanamide, including its metabolites and degradates in or on sorghum, forage at 0.40 parts per million (ppm); sorghum, grain at 0.30 ppm; and sorghum, stover at 0.90 ppm. These time-limited tolerances expire on December 31, 2017.

Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under FIFRA section 18. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on FIFRA section 18 related time-limited tolerances to set binding precedents for the application of FFDCA section 408 and the safety standard to other tolerances and exemptions. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish 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. . . .”

Section 18 of FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

Numerous states requested emergency exemptions for the use of sulfoxaflor on sorghum to control sugarcane aphid ( Melanaphis sacchari ). Based on information provided by the states, this is either a new pest or new biotype of M. sacchari. There are no registered insecticides or economically or environmentally feasible alternative control practices available to adequately control this non-routine pest infestation. Unusually high populations of aphids can cause direct plant death from aphid feeding as well as indirect damage and harvesting issues from the aphid honeydew residue. The states asserted that without the use of sulfoxaflor, uncontrolled aphid infestations are likely to result in significant economic losses.

After having reviewed the submissions, EPA determined that an emergency condition exists for these States, and that the criteria for approval of an emergency exemption are met. EPA has authorized a specific exemption under FIFRA section 18 for the use of sulfoxaflor on sorghum for control of sugarcane aphid in Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, Oklahoma, Tennessee, and Texas.

As part of its evaluation of the emergency exemption application, EPA assessed the potential risks presented by residues of sulfoxaflor in or on sorghum. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in FFDCA section 408(l)(6). Although these time-limited tolerances expire on December 31, 2017, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on sorghum after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these time-limited tolerances at the time of that application. EPA will take action to revoke these time-limited tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because these time-limited tolerances are being approved under emergency conditions, EPA has not made any decisions about whether sulfoxaflor meets FIFRA's registration requirements for use on sorghum or whether permanent tolerances for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance decision serves as a basis for registration of sulfoxaflor by a State for special local needs under FIFRA section 24(c). Nor does this tolerance by itself serve as the authority for persons in any State other than those authorized to use this pesticide on the applicable crops under FIFRA section 18 absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for sulfoxaflor, contact EPA's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT .

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish 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. . . .”

As part of its evaluation of the emergency exemption applications, EPA assessed the potential risks presented by residues of sulfoxaflor in or on sorghum, forage; sorghum, grain; and sorghum, stover. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and EPA decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18.

EPA has evaluated this use of sulfoxaflor on sorghum, as well as its use on various other crops, and established tolerances for similar use patterns in the Federal Register of May 17, 2013 (78 FR 29041) (FRL-9371-4) in association with requests for tolerances to support registrations of sulfoxaflor under FIFRA section 3 .

Consistent with the factors specified in FFDCA section 408(b)(2)(D), 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 expected as a result of this emergency exemption request and the time-limited tolerances for residues of sulfoxaflor in or on sorghum, forage at 0.40 ppm; sorghum, grain at 0.30 ppm; and sorghum, stover at 0.90 ppm. There is an existing permanent tolerance for sulfoxaflor residues in/on aspirated grain fractions at 20 ppm and that tolerance is sufficient to address residues in/on aspirated grain fractions that may come from sorghum. In addition, sorghum commodities may be used as livestock feedstuffs. Inclusion of sorghum in the estimated reasonable balances livestock dietary burdens for cattle, poultry, and swine did not result in a need for revision of the existing tolerances for residues of sulfoxaflor in livestock commodities.

In the May 17, 2013 Federal Register , EPA published a final rule establishing tolerances for residues of sulfoxaflor in 40 CFR 180.668 in or on numerous commodities. A summary of the toxicological endpoints for sulfoxaflor for human risk assessment is discussed in Units III.A. and B. of the May 17, 2013 Federal Register final rule.

In evaluating dietary exposure, the Agency has noted that estimated drinking water concentrations based on the sulfoxaflor use on sorghum resulted in lower estimates than those previously assessed and the food consumption database used to support the Agency's dietary exposure assessments does not report any consumption of sorghum, either as grain or as syrup. Therefore, the dietary exposure estimates from the previous assessment are not changed by the FIFRA section 18 use. Dietary risk estimates from exposure to sulfoxaflor through food and water are below the Agency's level of concern.

In its aggregate assessment of exposures and risk associated with sulfoxaflor, EPA concluded the following: Acute dietary exposure from food and water to sulfoxaflor will occupy 16% of the acute population adjusted dose (aPAD) for children 1-2 years old and females 13-49 years old, the population groups receiving the greatest exposure; and chronic exposure to sulfoxaflor from food and water will utilize 18% of the chronic population adjusted dose (cPAD) for all infants, the population group receiving the greatest exposure. These estimates are well below 100% and are, therefore, below the Agency's level of concern.

There are no residential uses of sulfoxaflor at this time. Consequently, aggregate exposure and risk estimates are equivalent to the dietary (food + drinking water) exposure and risk estimates discussed in this unit.

Therefore, EPA concluded there is a reasonable certainty that no harm will result to the general population and to infants and children from aggregate exposure to sulfoxaflor residues.

Refer to the May 17, 2013 Federal Register final rule, available at http://www.regulations.gov, for a summary of the aggregate risk assessment and determination of safety. Detailed discussion of the aggregate risk assessments and the determinations of safety relied upon in this action may be found in the Agency reviews and human health risk assessments provided as supporting documents in the docket for this action (EPA-HQ-OPP-2014-0643).

An adequate enforcement methodology is available to enforce the tolerance expression. In the submitted field trials, residues of sulfoxaflor and its metabolites in crops were determined using the Dow analytical method designated as 091031. The proposed method for tolerance enforcement in plant commodities is method 091116: “Enforcement Method for the Determination of Sulfoxaflor (XDE-208) and its Main Metabolites in Agricultural Commodities Using Offline Solid-Phase Extraction and Liquid Chromatography with Tandem Mass Spectrometry Detection.” Method 091116 extracts residues with acetonitrile/water and includes use of a deuterated internal standard, hydrolysis with sodium hydroxide to release base-labile conjugates, and clean up via solid-phase extraction. This method is applicable for the quantitative determination of residues of sulfoxaflor, N -[methyloxido[1-[6-(trifluoromethyl)-3-pyridinyl]ethyl]-λ 4 -sulfanylidene]cyanamide and its metabolites, X11719474, N -((methyl)oxido[1-[6-trifluoromethyl)pyridine-3-yl]ethyl]- λ 4 -sulfanylidene)urea and X11721061, 1-[6-(trifluoromethyl)pyridin-3-yl]ethanol, in agricultural commodities and processed products. The method was adequately validated, with a limit of quantitation (LOQ) of 0.010 milligram/kilogram (mg/kg) for all matrices, including sorghum. The Food and Drug Administration Multi-Residue Method was reported by the registrant to be not suitable for analysis of sulfoxaflor and/or its metabolites; the German multi-residue Method S-19 may be suitable.

The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

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 Nations 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 sulfoxaflor in/on sorghum commodities.

Therefore, time-limited tolerances are established for residues of sulfoxaflor, in or on sorghum, forage at 0.40 ppm; sorghum, grain at 0.30 ppm; and sorghum, stover at 0.90 ppm. These tolerances expire on December 31, 2017.

This action establishes tolerances under FFDCA sections 408(e) and 408(l)(6). 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 action has been exempted from review under Executive Order 12866, this action 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 action 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 in accordance with FFDCA sections 408(e) and 408(l)(6), such as the tolerances 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 action 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 action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

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 (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), 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 the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

This document announces that, on January 13, 2015, OMB approved the information collection requirements contained in the Commission's Report and Order, FCC 14-31, published in 79 FR 32366, June 4, 2014, and amended at 79 FR 59138, October 1, 2014. The OMB Control Number is 3060-1030. The Commission publishes this notice as an announcement of the effective date of the information collection requirements.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on January 13, 2015, the new or modified information collection requirements contained in the Commission's rules at 47 CFR 2.1033(c)(19)(i)-(ii); 27.14(k), (s); 27.17(c); 27.50(d)(3); 27.1131; 27.1132; 27.1134(c), (f).

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1030.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1030.

OMB Approval Date: January 13, 2015.

OMB Expiration Date: January 31, 2018.

Title: Service Rules for Advanced Wireless Services (AWS) in the 1.7 GHz and 2.1 GHz Bands.

Form Number: N/A.

Respondents: Business or other for-profit entities; state, local, or tribal government; and not for profit institutions.

Number of Respondents and Responses: 393 respondents; 83,505 responses.

Estimated Time per Response: 0.25 to 5 hours.

Frequency of Response: Annual, semi-annual, and on occasion reporting requirements, recordkeeping requirement, third-party disclosure requirements, and every ten years reporting requirements.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection is contained in sections 1, 2, 4(i), 201, 301, 302, 303, 307, 308, 309, 310, 316, 319, 324, 332, and 333 of the Communications Act of 1934, as amended, and sections 6003, 6004, and 6401 of the Middle Class Tax Relief Act of 2012, Public Law 112-96, 126 Stat. 156, 47 U.S.C. 151, 152, 154(i), 201, 301, 302(a), 303, 307, 308, 309, 310, 316, 319, 324, 332, 333, 1403, 1404, and 1451.

Total Annual Burden: 24,417 hours.

Total Annual Cost: $508,120.

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information

Privacy Act Impact Assessment: No impact(s).

Needs and Uses: The Commission received approval from the Office of Management and Budget (“OMB”) for the information collection requirements that are contained in the AWS-3 Report and Order, FCC 14-31, whose information collection requirements for new spectrum bands increased the number of respondents, responses, hourly burden, and annual costs associated with these bands. We also updated prior estimates for other related spectrum bands.

This is a summary of the Report and Order, DA 15-37, adopted January 8, 2015, and released January 9, 2015. The full text of this document is available for inspection and copying during normal business hours in the Commission's Reference Center, 445 12th Street SW., Washington, DC 20554. The complete text of this document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or www.BCPIWEB.com. The Commission will not send a copy of this Report and Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of particular applicability. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

The reef fish fishery of the Gulf, which includes gray triggerfish, is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). All weights specified in this rule are round weight.

The final rule for Amendment 37 to the FMP (78 FR 27084, May 9, 2013) implemented the Gulf gray triggerfish recreational ACL of 241,200 lb (109,406 kg), and the recreational ACT of 217,100 lb (98,475 kg), as specified in 50 CFR 622.41(b)(2)(iii).

The final rule for Amendment 37 to the FMP also implemented an in-season AM to close the recreational sector when the ACT is reached or projected to be reached, as specified in 50 CFR 622.41(b)(2)(i), and implemented a post-season AM in the form of an ACL overage adjustment that would apply if the recreational ACL is exceeded and gray triggerfish are overfished, as specified in 50 CFR 622.41(b)(2)(ii). This post-season AM reduces the recreational ACL and ACT for the year following a recreational ACL overage by the amount of the ACL overage in the prior fishing year, unless the best scientific information available determines that a greater, lesser, or no overage adjustment is necessary.

NMFS determined that the 2014 recreational landings were 212,751 lb (96,502 kg), which exceeded the 2014 adjusted recreational ACL by 186,993 lb (84,819 kg) and the 2014 adjusted recreational ACT by 211,093 lb (95,796 kg). Therefore, NMFS implements a post-season AM for recreational gray triggerfish in the Gulf for the 2015 fishing year through this temporary final rule. Based on the 2014 ACL overage, NMFS reduces the 2015 recreational ACL from 241,200 lb (109,406 kg) to 54,207 lb (24,588 kg) and the 2015 recreational ACT from 217,100 lb (98,475 kg), to 30,107 lb (13,656 kg).

Based on the adjusted 2015 recreational ACT of 30,107 lb (13,656 kg) for Gulf gray triggerfish and landings data from 2014, NMFS implements the in-season AM to close the recreational harvest of Gulf gray triggerfish at 12:01 a.m., local time, on February 7, 2015, until 12:01 a.m., local time on January 1, 2016, unless NMFS publishes a superseding document in the Federal Register .

During the closure, the bag and possession limits of gray triggerfish in or from the Gulf EEZ are zero. These bag and possession limits apply in the Gulf on board a vessel for which a valid Federal charter vessel/headboat permit for Gulf reef fish has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

The recreational sector for gray triggerfish will reopen on January 1, 2016, the beginning of the 2016 recreational fishing season. The 2016 recreational ACL for gray triggerfish will return to 241,200 lb (109,406 kg), and the recreational ACT will return to 217,100 lb (98,475 kg), as specified in 50 CFR 622.41(b)(2)(iii), unless AMs are implemented due to a recreational ACL overage, or the Council takes regulatory action to adjust the recreational ACL and ACT.

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of Gulf gray triggerfish and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.41(b)(2) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because prior notice and opportunity for public comment on this temporary rule is unnecessary and contrary to the public interest. Such procedures are unnecessary because the recreational AMs established by Amendment 37 to the FMP (78 FR 27084, May 9, 2013) and located at 50 CFR 622.41(b)(2) have already been subject to notice and comment, and all that remains is to notify the public of the reduced ACL and ACT, and recreational closure for gray triggerfish for the remainder of the 2015 fishing year. They are contrary to the public interest because there is a need to immediately implement this action to protect the gray triggerfish resource, since the capacity of the recreational sector allows for rapid harvest of gray triggerfish. Prior notice and opportunity for public comment on this action would require time and would potentially result in the adjusted recreational ACL for gray triggerfish being exceeded, which, in turn, would reduce the recreational ACL and ACT for gray triggerfish in 2016.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).