The current 10 CFR 73.55 became effective on May 26, 2009, with compliance required by March 31, 2010. The NRC believes that Part 50 licensees with facilities in decommissioning or decommissioned status ( e.g., a Part 50 licensee with a decommissioned facility or a Part 50 licensee that has only a general licensed Independent Spent Fuel Storage Installation (ISFSI) under 10 CFR 72.210 with no plant or a plant in decommissioning status) may not have recognized the applicability of this regulation to their facility. The purpose of this Webinar, therefore, is to clarify the applicability of the current 10 CFR 73.55 to all Part 50 licensees including those with facilities in decommissioning or decommissioned status.

Specifically, the NRC seeks to provide clarity that 10 CFR 73.55 does in fact apply to Part 50 licensees with decommissioned facilities or facilities in a decommissioning status. These licensees include those Part 50 licensees with a facility in decommissioning status and a Part 50 licensee with a general license ISFSI under 10 CFR 72.212 with no plant or a plant in decommissioned status. The desired outcome of this Webinar is a mutual understanding of the applicability of the Part 10 CFR 73.55 Regulations, as well as a path forward to ensure compliance by the affected licensee.

The NRC believes that there are currently no security or health and safety gaps at these facilities even as they may not be in compliance with the current 10 CFR 73.55 because the licensees' security programs meet the baseline requirements of the previous version of 10 CFR 73.55 and meet the requirements in subsequent security orders. In fact, the statement of considerations for this regulation notes (March 27, 2009; 74 FR 13925) that, with the exception of cyber security, the majority of security plan changes are likely minimal and are not likely to decrease the effectiveness of licensee's current plan; and some changes could require a license amendment or an exemption.

The NRC has not identified any specific questions for public and stakeholder input.

The following table indicates the related documents that are available to the public and how they may be obtained. See the ADDRESSES section of this document for information on the physical locations and Web sites to access these documents.

In October 2008, the FDIC adopted the TLGP following a determination of systemic risk by the Secretary of the Treasury (after consultation with the President) that was supported by recommendations from the FDIC and the Board of Governors of the Federal Reserve System (Federal Reserve). 1 The TLGP is part of an ongoing and coordinated effort by the FDIC, the U.S. Department of the Treasury, and the Federal Reserve to address unprecedented disruptions in the financial markets and preserve confidence in the American economy.

The FDIC's October 2008 interim rule provided the blueprint for the TLGP. 2 The TLGP comprises two distinct components: The Debt Guarantee Program, pursuant to which the FDIC guarantees certain senior unsecured debt issued by entities participating in the TLGP; and the TAG program, pursuant to which the FDIC guarantees all funds held at participating IDIs (beyond the standard maximum deposit insurance limit) in qualifying noninterest-bearing transaction accounts.

The TAG component of the TLGP was developed, in part, to address concerns that a large number of account holders might withdraw their uninsured account balances from IDIs due to then-prevailing economic uncertainties. Such withdrawals could have further destabilized financial markets and impaired the funding structure of smaller banks that rely on deposits as a primary source of funding while also negatively affecting other institutions that had relationships with these banks. 3 In designing the TAG program, the FDIC sought to improve public confidence and to encourage depositors to maintain their transaction account balances at IDIs participating in the TAG program.

As part of its rulemaking process, the FDIC in November 2008 expanded the TAG program to cover, among other accounts, “negotiable order of withdrawal,” or NOW accounts, with interest rates no higher than 0.50 percent if the IDI offering the account committed to maintain the interest rate at a level no higher than 0.50 percent through December 31, 2009. 4

The TAG program was originally set to expire on December 31, 2009. 5 The FDIC recognized that the TAG program was contributing significantly to improvements in the financial sector, but also noted that many parts of the country were still suffering from the effects of economic turmoil. As a result, on August 26, 2009, following a public notice and comment period, 6 the FDIC issued a final rule that extended the TAG program through June 30, 2010. 7

The initial TAG extension included an increased assessment rate designed to offset the potential losses associated with the FDIC's guarantee. Beginning on January 1, 2010, the fee for continued participation in the TAG was raised and the basis changed to reflect an IDI's risk profile, ranging from 15 basis points to up to 25 basis points. The rule provided participating IDIs with a second opportunity to opt out of the TAG program. 8 The initial TAG extension also required participating IDIs to extend their commitment to maintain interest rates on NOW account at no higher than 0.50 percent during the extended TAG program. 9

Since its inception, the TAG program has been an important source of stability for many banks with large transaction account balances. Currently, over 6,300 insured depository institutions, representing approximately 80 percent of all IDIs, continue to participate in the TAG program and to benefit from the guarantee provided by the FDIC. These institutions held an estimated $356 billion of deposits in accounts currently subject to the FDIC's guarantee as of March 31, 2010. Of these, $280 billion represented amounts above the insured deposit limit and guaranteed by the FDIC through its TAG program. Among the current participants in the program, the average TAG account size was about $1.04 million. About 509 institutions rely on TAG accounts to fund 10 percent or more of their assets.

While the immediate financial crisis that led to the creation of the TLGP in October 2008 has abated, several economic factors led the FDIC's Board to authorize publication in the Federal Register of an interim rule to amend the TLGP to provide for a six month extension, until December 31, 2010, of the TAG Program, with the possibility of an additional 12-month extension without further rulemaking. 10 Namely, the recession that began in late 2007 continues to pressure local communities across the country. The financial distress has spread from large, systemically important banks to banks of all sizes, particularly in regions suffering from ongoing economic turmoil. 11 Weaknesses facing community banks have intensified as the lingering consequences of the 2008 financial crisis and the resulting recession place continued pressure on earnings and asset quality. The effects of the financial crisis and recession are expected to persist for some time, especially as the magnitude of economic distress facing local markets places continued pressure on asset quality and earnings, with the potential for undermining the stability of the banking organizations that serve these markets. 12

With these factors in mind, as well as the FDIC's general concern that allowing the TAG program to expire in the current environment could cause a number of community banks to experience deposit withdrawals from their large transaction accounts and risk needless liquidity failures or negatively affect IDI's deposit franchise values, the interim rule reflected several features designed to continue to promote confidence and stability in the banking system and to monitor and minimize risk of loss. 13

In order to allow the majority of participating IDIs to remain in the program, the FDIC's interim rule did not increase fees for continued participation in the extended TAG program. 14 Rather, the tiered-pricing assessment structure, ranging from 15 to 25 basis points based on an IDI's deposit insurance assessment risk category remains in effect. However, the interim rule did modify the basis for calculating the risk-based assessments from end-of-calendar-quarter to average-daily-account-balance reporting. 15

With respect to the treatment of NOW accounts, the interim rule reduced the permissible interest rate, from no higher than 0.50 percent to no higher than 0.25 percent, for the NOW accounts covered by the FDIC's TAG guarantee in order to better align the program with prevailing market rates. It also required participating IDIs to commit to maintain the interest rate at or below 0.25 percent after June 30, 2010, and through December 31, 2010, or the duration of the program, if the Board further extends the TAG program. 16

In light of the regulatory modifications to the existing TAG program and in recognition that some IDIs wished to discontinue participation in the program, the interim rule provided IDIs currently participating in the TAG program with a one-time, irrevocable opportunity to opt out of this TAG extension by April 30, 2010. 17 An additional 441 institutions took advantage of this opt-out opportunity and indicated their intent to exit the program as of July 1, 2010. Under the interim rule, a participating IDI's decision to remain in the extended TAG program obligates it to remain in the program through December 31, 2010, or for the duration of the program, if the Board further extends the TAG program.

As to the disclosures required regarding the extended TAG program, the interim rule required IDIs that did not opt out of the extension to update their disclosures on or before May 20, 2010, to reflect the new termination date for the extension. 18 Under the interim rule, those IDIs that chose to opt out of the program similarly had to update disclosures to reflect that they would no longer be participating in the TAG program and that deposits in noninterest-bearing transaction accounts would no longer be guaranteed in full by the FDIC. 19

The FDIC requested comment on the interim rule, and the comment period ended on May 19, 2010. A total of 10 comments were submitted by bankers, trade groups, and Members of the U.S. House of Representatives. The comments are summarized below and may be viewed in their entirety on the FDIC's Web site at http://www.fdic.gov/regulations/laws/federal/ .

With one exception, commenters generally supported the FDIC's interim rule extending the TAG program. They cited the continued confidence and stability that the TAG program instills in customers as well as the ability for banks to use the deposit base provided by the TAG program to lend and promote growth in their communities.

One commenter opposed to the interim rule suggests, without providing any supporting data, that, because evidence shows the economy is recovering, a further extension of the TAG program is unwarranted and would further cause participating IDIs to postpone addressing their liquidity positions. Although the FDIC agrees there are many signs that the economy is recovering, the recovery remains fragile and is still threatened by weak labor markets, household and business uncertainty, and tight credit conditions. The Final Rule extends the TAG program in order to reduce the risk of needless liquidity failures and increased costs that might result if the TAG program were not extended during this still fragile economic period. In addition, the Final Rule would maintain an important source of liquidity for participating IDIs to fund small business lending, which will further contribute to economic recovery. An orderly phase-out of the TAG program will be appropriate once evidence points to a more solid and sustained economic recovery.

Further comments are detailed below by subject.

As an initial matter, the FDIC notes that some commenters viewed the interim rule's possible additional extension beyond December 31, 2010, as a term of “up to 12 months.” To provide maximum flexibility in the event of a more rapid resurgence of positive economic conditions, the Final Rule defines the “TAG expiration date” to mean December 31, 2010, unless the Board, for good cause, extends the program for an additional period of time not to exceed one year, in which case the term “TAG expiration date” means the last day of such additional period of time. As with the interim rule, the Final Rule provides that the FDIC's Board will announce its decision regarding any additional extension of the TAG program no later than October 29, 2010. At that time, if such a further extension beyond December 31, 2010, is warranted, the Board will announce the TAG expiration date that will conclude the TAG program.

Three commenters requested that the FDIC offer the opportunity to opt into the TAG program to IDIs that had previously opted out of the program. Some commenters note that they had opted out of the TAG program under the premise that the program was temporary in nature and that the increased assessment basis would not justify the cost of remaining in the program. All of these commenters now cite the potential for a competitive imbalance if similarly situated IDIs are not permitted to opt into the program. One commenter suggests that IDIs that were healthy at the time that they made their opt-out decision be permitted to opt in to the program.

After carefully considering these comments, the FDIC has not provided for opt-in opportunities in the Final Rule. Primarily, as noted in the interim rule, the extension of the TAG program represents a continuation of the FDIC's action under the October 2008 systemic risk determination to mitigate the continuing adverse effects of the financial crisis and recession. Permitting non-participating IDIs to opt back into the program would be inconsistent with the FDIC's previously-announced intent to conclude the program. Further, the TAG extension may terminate as soon as December 31, 2010, and only two institutions and one trade group have indicated a desire to opt in. At this stage of the TAG program, the costs of establishing and implementing systems to reinstate the program for a few IDIs and the potential for depositor confusion outweigh arguments to the contrary.

In addition, if the Board decides that an extension is warranted after December 10, 2010, one commenter believes that the FDIC should offer another opportunity to opt out of the TAG program. The commenter reasons that a secondary extension would cause IDIs to incur additional assessments. However, the interim rule notified IDIs that they would be obligated to remain in the program (and pay any required assessment) through December 31, 2010, or for the duration of the program, if the Board further extended the TAG program. In making the decision to remain in the extended TAG program, IDIs should have factored in the expense of participating in the program for the duration of the program. Moreover, the interim rule provided for a secondary extension of one year beyond December 31, 2010, until December 31, 2011. The Final Rule provides for the possibility that the program may be extended for a period of less than one year beyond December 31, 2010. If the Board determines to extend the program for less than one year beyond December 31, 2010, the costs of the extension provided for in the Final Rule would be less than those provided for in the interim rule. Accordingly, the Final Rule does not provide an additional opt out opportunity.

Some commenters expressed concern regarding the reduction, from 0.50 percent to 0.25 percent, of the maximum interest permissible for TAG-qualifying NOW accounts provided for in the interim rule. These commenters noted that the interest rate reduction could lead to decreased earnings on such TAG-qualifying NOW accounts, and may cause banks to divert funds to pledge as collateral that might otherwise be used to support lending. Further, a commenter expressed concern that if the TAG program is extended beyond December 31, 2010, the 0.25 percent maximum permissible interest rate for TAG-qualifying accounts may not align with future prevailing market rates. Other commenters felt that the reduced interest rate represented current market rates in their regions, and did not believe that such a reduction would affect their earnings.

IDIs throughout the country participate in the TAG program. In the interim rule, the FDIC explained its rationale for reducing the maximum interest rate for TAG-qualifying NOW accounts. 20 Based on data provided by RateWatch, the FDIC noted that the nationwide average rates for regular interest-bearing checking accounts ranged from 0.12 percent to 0.15 percent for most accounts, and from 0.26 percent to 0.29 percent for premium accounts held by municipalities, school districts, and other typical large transaction account holders. In providing for the interest rate reduction on TAG-qualifying NOW accounts in the interim rule, the FDIC sought to align the interest rate with current market rates and to ensure the program is not used inappropriately by IDIs to attract interest-sensitive deposits to fund high-risk activities.

The FDIC has considered the commenters' concerns that the reduced interest rate may not align with prevailing rates by region or with future interest rates, but has determined to retain the 0.25 percent limit for qualifying NOW accounts as representative of the prevailing nationwide interest rates for such accounts at this time and for the relatively short duration of the TAG extension. The FDIC will continue to monitor interest rates for TAG-qualifying NOW accounts.

In order to monitor and assess fees based on the ongoing risk exposure, the interim rule modified the basis for calculating risk-based assessments from end-of-calendar-quarter to average-daily-account-balance reporting. One commenter suggested that the modification is only appropriate for IDIs that currently report their FDIC deposit insurance assessments as the quarterly average of daily closing balances because of the significant cost associated with altering general ledger systems to meet this requirement for potentially only two calendar quarters. However, another commenter representing community banks expressly noted that even though this change may create additional administrative burdens on smaller IDIs, the change “would more accurately reflect the TAG amounts of these fluctuating and volatile accounts.”  21

In the interim rule, the FDIC noted that, of the institutions that use quarter-end reporting for their deposit insurance assessment base, fewer than 1,000 institutions report more than 25 TAG-qualifying accounts. After carefully considering this comment, the FDIC continues to believe that the modification in the assessment base for such a limited universe of IDIs would not create a significant burden that would outweigh its responsibility to accurately monitor the TAG program and the associated risk of loss.

One commenter suggested increasing the tiered-pricing assessment for participating IDIs in order to decrease their reliance on the TAG Program. However, the interim rule specifically did not impose an increased TAG assessment rate in order to keep the program accessible to all participating IDIs and to avoid further pressure on the liquidity posture of those that participate in the TAG program. The FDIC remains committed to these goals; consequently, as with the interim rule, the Final Rule does not increase fees for participation in the TAG program.

For the reasons set forth in the preceding section, the FDIC has issued the Final Rule, with only one modification. The change concerns the length of any possible secondary extension of the TAG program, should the FDIC's Board deem further extensions necessary beyond December 31, 2010. The features of the Final Rule are discussed below.

The Final Rule extends the TAG program through December 31, 2010, with the possibility of an additional extension not to exceed December 31, 2011, without further rulemaking, at the discretion of the Board upon a finding of continued need for the TAG program. If the Board determines that an additional extension is warranted beyond December 31, 2010, an announcement to that effect will be made by the FDIC no later than October 29, 2010.

As with the interim rule, the Final Rule does not make any changes to the existing tiered-pricing assessment, ranging from 15 to 25 basis points based on an institution's deposit insurance risk profile. As noted in the interim rule, in order to prevent unanticipated risk of loss, the FDIC reminds participating IDIs to exercise prudent marketing of TAG accounts that qualify for the FDIC's guarantee and to continue to exercise risk-management principles applicable to an IDI's existing business plan. Participating IDIs should not use the extension period to aggressively market or grow their TAG-related accounts.

The Final Rule provides that IDIs that did not opt out of the TAG program will be required to report their TAG amounts as average daily balances in order to enable the FDIC to monitor and assess fees based upon the ongoing risk exposure. Under the Final Rule, beginning with the September 30, 2010, report date for the Report of Condition or Thrift Financial Report, the total dollar amount of TAG-qualifying accounts and the total number of accounts must be reported as an average balance. The amounts to be reported as daily averages are the total dollar amounts of the noninterest-bearing transaction accounts, as defined in 12 C.F.R. 370.2(h), of more than $250,000 for each calendar day during the quarter divided by the number of calendar days in the quarter. For days that an office of the reporting IDI is closed ( e.g., Saturdays, Sundays, or holidays), the amounts outstanding from the previous business day would be used. The total number of accounts to be reported should be calculated on the same basis. Documentation supporting the amounts used in the calculation of the average daily balance amounts must be retained and be readily available upon request by the FDIC or the IDI's primary Federal regulator.

Consistent with the interim rule, the Final Rule provides that the interest rate on NOW accounts that are eligible for the FDIC's guarantee may not exceed 0.25 percent. The Rule also requires participating IDIs to commit to maintain the interest rate at or below 0.25 percent after June 30, 2010, and through December 31, 2010, or for the duration of the program should the Board extend it.

The interim rule provided IDIs currently participating in the TAG program with an opportunity to opt out of this TAG extension by April 30, 2010, and detailed the mechanism by which an IDI was to provide the FDIC with notice of its intent to opt out. The Final Rule does not change this feature. Accordingly, a participating IDI's decision to remain in the extended TAG program obligates it to remain in the program through December 31, 2010, or for the duration of a possible additional extension if the Board determines such extension is warranted.

The process of amending Part 370 by means of this Final Rule is governed by the Administrative Procedure Act (APA). Pursuant to section 553(b)(B) of the APA, general notice and opportunity for public comment are not required with respect to a rule making when an agency for good cause finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Similarly, section 553(d)(3) of the APA provides that the publication of a rule shall be made not less than 30 days before its effective date, except “* * * (3) as otherwise provided by the agency for good cause found and published with the rule.”

Consistent with section 553(b)(B) of the APA, in publishing the interim rule, the FDIC invoked the good cause exception based on the furtherance of the public interest by extending the time period of the TAG program to promote continued stability in the banking system through guaranteeing large uninsured transaction account balances in order to provide participating IDIs with continued sources of funding to meet their liquidity needs. (Nonetheless, the FDIC solicited comments on the interim rule, and has fully considered the comments that were submitted.) For similar reasons, the FDIC confirms that the good cause exception, provided for in section 553(b)(B) of the APA, applies to the Final Rule.

Section 553(d)(3) of the APA provides that the publication of a rule shall be made not less than 30 days before its effective date, except “as otherwise provided by the agency for good cause found and published with the rule.” For reasons that supported its invocation of the good cause exception to section 553(b)(B) of the APA, the FDIC relied upon the good cause exception to section 553(d)(3) and published the interim rule with an immediate effective date. For similar reasons, the FDIC invokes the good cause exception provided for in section 553(d)(3) of the APA and provides for an immediate effective date for this Final Rule.

The Riegle Community Development and Regulatory Improvement Act provides that any new regulations or amendments to regulations prescribed by a Federal banking agency that impose additional reporting, disclosures, or other new requirements on insured depository institutions shall take effect on the first day of a calendar quarter which begins on or after the date on which the regulations are published in final form, unless the agency determines, for good cause published with the rule, that the rule should become effective before such time. 22 For the same reasons discussed above, the FDIC finds that good cause exists for an immediate effective date for the Final Rule.

Background

This rule amends the EAR to make various revisions as a result of a systematic review of the Commerce Control List (CCL) that was conducted by BIS. This rule is the third phase of the regulatory implementation of the results of that systematic review of the CCL that was conducted by BIS beginning in 2007. The CCL review benefited from input received from BIS's Technical Advisory Committees (TACs) and public comments received in response to a notice of inquiry (July 17, 2007, 72 FR 39052).

On April 18, 2008, BIS published the first phase of the regulatory implementation of the CCL review in a rule titled, “Technical Corrections to the Export Administration Regulations based upon a Systematic Review of the CCL” (73 FR 21035). The first CCL review rule made needed technical corrections and clarifications to the CCL. The second CCL review rule made substantive revisions to the EAR, including the CCL (October 6, 2008, 73 FR 58033).

The revisions to the CCL in this third CCL review rule are divided into three types of revisions : (I) Clarifications to Existing Controls; (II) Eliminating Redundant or Outdated Controls; and (III) Establishing More Focused and Rationalized Controls. The changes in this third CCL review rule are typically additional changes from the 2007 review that required further U.S. Government review and/or interagency discussions before they could be implemented. This rule also makes certain revisions to other parts of the EAR related to the CCL that were recommended during the 2007 CCL review.

As a part of the implementation phase of the CCL review, BIS has also taken other non-regulatory actions to improve the public's understanding of the CCL. These actions have involved publishing certain advisory opinions and creating new web guidance to provide greater clarity to exporters and reexporters regarding existing provisions of the CCL. BIS has also created a new process whereby it has stated its intention to conduct similar types of systematic reviews of the CCL in the future in order to continuously improve the CCL.

This rule makes the following revisions to the Export Administration Regulations (EAR):

In § 734.4(b)(1), this rule adds paragraph (a)(9) of ECCN 5A002 to the list of 5A002 classified commodities that are subject to the special de minimis requirements for certain encryption items. ECCN 5A002.a.9 is controlled for Encryption Items (EI) reasons, so it should be included in paragraph (b)(1) because that paragraph is intended to include all of the “items” paragraphs of 5A002 that are controlled for EI reasons.

In § 734.4 ( De minimis U.S. content) paragraph (a)(4) and § 742.14 (Significant items: hot section technology for the development, production or overhaul of commercial aircraft engines, components and systems) paragraph (a), this rule updates the provisions in these two sections that apply to “items” controlled for Significant Items (SI) reasons in ECCN 9E003 to conform these two sections to the intended paragraphs of ECCN 9E003 ( i.e., 9E003.a.1 through a.10 and h). These changes are needed because when 9E003 was revised the related provisions in §§ 734.4(a)(4) and 742.14(a) were not updated (July 12, 2000, 65 FR 43130). This rule updates those provisions to conform to the updates made to the items controlled under 9E003. This rule also makes changes to the SI reason for control under 9E003 to conform that reason for control to the SI items controlled under that ECCN entry, as described below.

In § 740.7 (Computers (APP)) under paragraph (b)(2)(i)(Computers and software), this rule removes and reserves this paragraph because the restrictions refer to a supplement of the EAR that is currently reserved. Supplement No. 3 to part 742 was removed and reserved in the EAR on April 24, 2006 (71 FR 20876). Paragraph (b)(2)(i) is also reserved because restricting physical access to areas housing the computer is no longer necessary in protecting U.S. export control interests in a distributed computing environment.

Also in § 740.7, this rule revises the Weighted TeraFLOPS (WT) level in paragraphs (c)(3)(ii) from 0.1 WT to 0.5 WT. This change is being made to address advances in technology levels that justify an adjustment for what level of “development” and “production” technology and source code should be authorized under these provisions of License Exception APP.

In § 772.1 (Definitions of terms as used in the Export Administration Regulations (EAR)), this rule revises the definition of “reasons for control” to conform that definition to the reasons for control listed in § 738.2(d)(2)(i)(A) of the EAR. Specifically, this rule removes the control “High Performance Computers (XP)” because that control is no longer in the EAR, and adds five reasons for control that were in the EAR but were not included in the “reasons for control” definition prior to this rule being published. Specifically, this rule adds “Chemical Weapons Convention (CW)”, “Encryption Items (EI)”, “Firearms Convention (FC)”, “Significant Items (SI)”, and “Surreptitious Listening (SL)” to the “reasons for control” definition.

This rule makes various substantive revisions to the CCL, divided below into three types of revisions: (I) Clarifications to Existing Controls; (II) Eliminating Redundant or Outdated Controls; and (III) Establishing More Focused and Rationalized Controls.

1. Revisions to the “headings” of existing CCL entries.

This rule makes revisions to the headings of three (3) CCL entries: 0E018, 4E992 and 4E993 to clarify the items controlled under those CCL entries.

ECCN 0E018 is amended by removing the phrase “0A018.a through 0A018.c” and replacing that with “0A018” for consistency with the International Munitions List (IML) 22.

ECCNs 4E992 and 4E993 are amended by revising the headings to conform to the removal of ECCNs 4B994 and 4C994 from the CCL. The changes in the headings of ECCNs 4E992 and 4E993 remove references to “technology” applicable to the ECCNs 4B994 and 4C994 that are removed from the CCL with this rule, as described in the next two paragraphs. The removal of ECCNs 4B994 and 4C994 are described below under the discussion on “Eliminating Redundant or Outdated Controls.”

ECCN 4E992 is amended by revising the heading to remove the reference to 4B994 and materials controlled by 4C994. The heading will be revised to specify the technology controlled under this ECCN entry is “technology” other than that controlled in 4E001 for the “development,” “production,” or “use” of equipment controlled by 4A994, or “software” controlled by 4D993 or 4D994.

ECCN 4E993 is amended by revising the heading to remove the reference to technology required for the development or production of graphic accelerators and magnetic disk drives. The heading is being revised to specify the technology controlled under this ECCN entry is “technology” for the “development” or “production” of equipment for “multi-data stream processing.” As described below, this rule also revises the “items” paragraph in the List of Items of controlled to conform to this change to the heading.

2. Revisions to “Items” paragraphs in CCL entries. This rule makes revisions to the “Items” paragraphs under two (2) CCL entries, 4E993 and 9A991, to provide greater clarity regarding the items controlled under those CCL entries. Specifically, these revisions include the following:

ECCN 4E993 is amended by removing the “items” paragraph (a), (b) and (c) and replacing it with a sentence stating, “The list of items controlled is contained in the ECCN heading.” As described above, the technology described in paragraphs (a) and (c) is being removed from this entry, and the only items that this entry will now control are listed in the entry's heading.

ECCN 9A991 is amended by making two clarifications. First, this rule revises “items” paragraph (b) to remove the word “and” because this word is not needed. Second, this rule amends the Note to paragraph (c) of the “items” paragraph, to specify that for aero gas turbine engines that are destined for use in civil “aircraft” and have been in use in bona fide civil “aircraft” for more than eight years, such engines are controlled under 9A991.d. This is not a change in the control parameter, but rather a clarification regarding the original intent of that Note to paragraph (c).

3. Clarifications to “Items” paragraphs to conform to multilateral regimes. This action revises the “items” paragraphs in two (2) CCL entries, 8A018 and 9A018, to clarify what items are controlled under those entries and to better conform those entries to the language used in multilateral control lists, such as the IML.

ECCN 8A018 is amended by revising paragraphs (b)(1), (b)(2), (b)(3), (b)(4) and (b)(5) of the “Items” paragraph, to conform to IML 9.b.3, 9.d and b.1-4, respectively. Specifically, under paragraph (b)(1), this rule adds the phrase “and specially designed components therefor” to conform to IML 9.b.1. Under paragraph (b)(2), this rule adds the phrase “and specially designed components therefor” to conform to IML 9.b.2. Under paragraph (b)(3), this rule revises the “items” paragraph to specify that the commodities controlled under this paragraph are “nonmagnetic diesel engines, 50 hp and over, specially designed for military purposes with nonmagnetic content in excess of 75 percent of total mass and specially designed components therefor.” This change is being made to conform to IML 9.b.2. Paragraph (b)(5) is removed from the CCL entry because the components, parts, accessories, and attachments for the above are now controlled under paragraphs (b)(1)-(b)(4) with the publication of this rule. This change is being made to conform to the IML 9 portion that was moved to (b)(1)-(b)(4) of the “items” paragraph of this CCL entry.

ECCN 9A018 is amended by revising paragraphs (c) and (d) of the “items” paragraphs to clarify the items controlled under this CCL entry. Specifically, under paragraph (c) this rule adds quotes around the term “aircraft” and removes the phrase “and helicopters,” to conform to IML 10.f. Under paragraph (d), this rule adds quotes around the term “aircraft” and removes the term “helicopter” to conform to IML 10.f. This rule also removes the reference to helicopters under paragraphs (c) and (d) because the definition of “aircraft” includes helicopters, so helicopters do not need to be specifically identified in the control parameter. This rule also removes “parts, attachments” under paragraph (f) to conform to IML 14.

4. Other assorted clarifications to existing controls.

ECCN 4A003 is amended by making a correction in the Anti-Terrorism (AT) control in the License Requirements section of this ECCN. This correction is made to conform to a change made on October 6, 2008 (73 FR 58040) in the Adjusted Peak Performance (APP) level in ECCN 4A994. To conform to the October 2008 change, this rule updates the AT control cross reference in the License Requirements section of ECCN 4A003 that refers to the “Adjusted Peak Performance” level in 4A994. Specifically, this rule corrects the AT control cross reference to inform the public to “refer to 4A994 for controls on `digital computer' with an APP > 0.0128 but ≤ to 0.75 WT).”

This rule amends ECCN 4A994 by revising the Related Definitions paragraph of the List of Items Controlled to read “N/A” because the definition for “two dimensional vector rate” applied to items controlled by ECCN 4A994.g, which was removed and reserved on October 6, 2008 (73 FR 58040).

ECCN 5A001 is amended to revise the Technical Note (2) to 5A001.b.6 to remove the redundant phrase, “samples of human voice and then convert these.” This same phrase only needs to be stated once in this technical note, so this rule is removing the redundant phrasing.

ECCN 7A008 is amended by revising the License Exceptions section by removing “TSR: N/A” because this ECCN is not a technology or software entry and adding License Exceptions “GBS: N/A” and “LVS: N/A” to indicate these license exceptions are not eligible for this entry.

ECCN 9E003 is amended by revising the SI control under the “License Requirements” section to conform the SI reason for control to the hot section technology for the development, production or overhaul of commercial aircraft engines, components and systems that are currently controlled in the “items” paragraphs of ECCN 9E003 ( i.e., 9E003.a.1 through a.10 and h). These changes are needed because when the “items” paragraph of ECCN 9E003 was amended on July 12, 2000 (65 FR 43130), the conforming change to the SI reason for control in that same ECCN entry was not updated. This rule updates this ECCN's SI license requirement to conform to the previous updates made to ECCN 9E003. This rule also makes conforming changes to §§ 734.4(a)(4) and 742.14(a) to conform to these same changes in 9E003, as described above.

ECCN 3A992 is amended by removing License Exception LVS eligibility for Syria. Syria is not eligible to receive commodities authorized by License Exception LVS under the EAR. This rule clarifies Syria's ineligibility by revising the LVS paragraph in the License Exceptions section of this ECCN to make it N/A.

ECCNs 4B994 and 4C994 are removed from the CCL because storage equipment previously controlled under ECCN 4A994 was removed from control on October 8, 2008 (73 FR 58033). Because the storage equipment is no longer controlled under 4A994, equipment for the “development” and “production” of magnetic and optical storage equipment no longer needs to be controlled under ECCN 4B994. In addition, for the same reason, materials specially formulated and required for the fabrication of head/disk assemblies for controlled magnetic and magneto-optical hard disk drives no longer needs to be controlled under ECCN 4C994. To conform to the removal of ECCNs 4B994 and 4C994, this rule also makes revisions to ECCNs 4E992 and 4E993 to remove references to “technology” applicable to these ECCNs 4B994 and 4C994 that are removed from the CCL with this rule. The changes to ECCNs 4E992 and 4E993 are described above under the discussion on “Revisions to the `headings' of existing CCL entries.”

ECCN 8A018 is amended by removing “items” paragraph (b)(5) to conform to a change to the IML. The IML 9 control that was under 8A018.b.5, prior to the publication of this rule, has been moved to paragraphs 8A018.b.1 through 8A018.b.4.

In Supplement No. 1 to part 738 (Commerce Country Chart), this rule removes the license requirement for Regional Stability (RS 2) from Austria, Finland, Ireland, Sweden and Switzerland ( i.e., this rule removes the “X” in the box in the RS 2 column for these five destinations). This change is made to create more consistency in what destinations require a license for RS column 2, NS column 2, and countries listed in Supplement No. 3 to part 740 (License Exception ENC Favorable Treatment Countries). Thirty-seven countries are in one of these three groupings. Twenty-four of the thirty-seven are in all three groupings ( i.e., these destinations do not require a license for RS column 2, NS column 2 and are listed in Supplement No. 3 to part 740). Nine of these thirty-seven countries require a license for RS column 2. Austria, Finland, Ireland, Sweden, and Switzerland all require a license for RS column 2 even though these countries are in Supplement No. 3 to Part 740 and do not require a license for NS column 2 reasons. Because these five countries are the only five countries that are listed in Supplement No. 3 to Part 740 and also do not require a license for NS column 2 reasons, these countries were the most appropriate destinations to remove the RS 2 license requirement from in order to create greater uniformity in these license requirements. This change is also made because Austria, Finland, Ireland, Sweden and Switzerland are not countries that contribute to regional instability that would be contrary to the foreign policy interests of the United States.

Removing the RS column 2 license requirement that applied to these countries is consistent with the stated purpose of regional stability controls in § 742.6(b), which is to prevent “export[s] or reexport[s] that could contribute directly or indirectly to any country's military capability in a manner that would alter or destabilize a region's military balance contrary to the foreign policy interests of the United States.” This removal raises the number of countries that are in all three groups from 24 to 29 and creates more consistency in these EAR license requirements.

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on June 28, 2010, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport NLR so long as they are exported or reexported July 28, 2010. Any such items not actually exported or reexported before midnight, on July 28, 2010, require a license in accordance with this rule.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 13, 2009, 74 FR 41325 (August 14, 2009), has continued the EAR in effect under the International Emergency Economic Powers Act.

1. This final rule has been determined to be significant for purposes of E.O. 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule contains a collection of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq. ). This collection has been approved by the Office of Management and Budget under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes for a manual or electronic submission.

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Therefore, this regulation is issued in final form.

5. The other changes made under this rule are nonsubstantive changes that would not meet the criteria noted in the preceding paragraph. For these nonsubstantive changes described in this paragraph, the Department of Commerce finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary and contrary to the public interest. The changes made by this rule described under this paragraph are not substantive changes, but rather are clarifications to existing controls. These nonsubstantive changes are described under Part I: Clarifications to Existing Controls in the Background section of this rule. These nonsubstantive changes include: revisions to the headings of existing CCL entries; and removal of an outdated “Related Controls” reference in one CCL entry. This rule does not alter any right, obligation or prohibition that applies to any person under the Export Administration Regulations (EAR). Additionally, if the previous rules were left in place, public confusion may result because the rules would refer to outdated references and headings. Because these revisions are not substantive changes, it is unnecessary to provide notice and opportunity for public comment. In addition, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule.

The Entity List provides notice to the public that certain exports, reexports, and transfers (in-country) to parties identified on the Entity List require a license from the Bureau of Industry and Security (BIS) and that availability of license exceptions in such transactions is limited. Persons are placed on the Entity List on the basis of criteria set forth in certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from or changes to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.

The ERC made a determination to add twenty-four persons under twenty-five entries to the Entity List on the basis of Section 744.11 (License Requirements that Apply to Entities Acting Contrary to the National Security or Foreign Policy Interests of the United States) of the EAR. The twenty-five entries added to the Entity List consist of three persons in Belarus, three persons in China, two persons in Hong Kong, three persons in Iran, four persons in Malaysia, two persons in New Zealand, two persons in Norway, five persons in South Africa, and one person in the United Kingdom. The twenty-fifth entry is to account for one person who has addresses in both Norway and South Africa.

The ERC reviewed Section 744.11(b) (Criteria for revising the Entity List) in making the determination to add these persons to the Entity List. Under that paragraph, entities for which there is reasonable cause to believe, based on specific and articulable facts, that have been involved, are involved, or pose a significant risk of being or becoming involved in activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such entities may be added to the Entity List pursuant to Section 744.11. Paragraphs (b)(1)-(b)(5) include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States. The persons being added to the Entity List under this rule have been determined by the ERC to be involved in activities that could be contrary to the national security or foreign policy interests of the United States. Examples of the specific activities these persons were involved with that are contrary to the national security or foreign policy interests of the United States pursuant to Section 744.11 are, as follows:

Belmicrosystems Research and Design Center, SOE Semiconductor Devices Factory, Vasili Kuntsevich and Hamid Reza Simchi are being added based on evidence that they reexported U.S.-origin read-out integrated circuit (ROIC) wafers to Electronic Components Industries (ECI) of Iran.

Fang Yu and Xi'an Xiangyu Aviation Technology Group are being added due to their role in the illegal export to China of Unmanned Aerial Vehicle (UAV) autopilots controlled for national security reasons.

OnTime Electronics Technology Company and Tam Wai Tak, a.k.a., Thomsom Tam, are being added due to their involvement in the diversion of controlled U.S.-origin items through Hong Kong to China. On June 5, 2008, OnTime Electronics Technology Company and Tam Wai Tak were indicted in the Southern District of Florida for conspiracy and violations of the Arms Export Control Act and the International Emergency Economic Powers Act.

Fadjr Marine Industries, a.k.a., SADAF; Tadbir Sanaat Sharif Technology Development Center (TSS); Austral Aero-Marine Corp. Sdn Bhd; Austral Aviation Corp.; Jimmy Tok; Mok Chin Fan, a.k.a., Chong Chen Fah; Leigh Michau; Q-SPD (Q-Marine International Ltd.); Gunther Migeotte; Icarus Design AS; Icarus Marine (Pty) Ltd.; Ralph Brucher; Scavenger Manufacturing (Pty) Ltd.; Shawn Hugo De Villiers; and Ad Hoc Marine Designs Ltd., are being added for illegally reexporting the Bradstone Challenger, a vessel that was subject to the EAR, to Iran for intended use by the Iranian Revolutionary Guard Corps (IRGC) Navy and for providing technical assistance on Iranian naval projects.

In addition, the Department of Commerce has reason to believe that Chinese electro-optics procurement firm Toptics, Inc. has procured U.S. origin uncooled thermal imaging cameras and may have reexported these items to Iran.

This rule implements the decision of the ERC to add twenty-four persons under twenty-five entries to the Entity List on the basis of Section 744.11 of the EAR. For all of the twenty-four persons under twenty-five entries added to the Entity List, the ERC specifies a license requirement for all items subject to the EAR and establishes a license application review policy of a presumption of denial. A BIS license is required for the export, reexport or transfer (in-country) of any item subject to the EAR to any of the persons listed above and described below in further detail, including any transaction in which any of the listed persons will act as purchaser, intermediate consignee, ultimate consignee, or end-user of the items. This listing of these persons also prohibits the use of license exceptions ( see part 740 of the EAR) for exports, reexports and transfers (in-country) of items subject to the EAR involving such persons.

Specifically, this rule adds the following twenty-four persons under twenty-five entries to the Entity List:

The ERC also made a determination to remove one person, Asia Link, located in Hong Kong, as a result of Asia Link's request for removal from the Entity List. Based upon the review of the information provided in the removal request in accordance with Section 744.16 (Procedure for requesting removal or modification of an Entity List entity), and further review that was conducted by the ERC's member agencies, the ERC determined that Asia Link should be removed from the Entity List.

The ERC decision to remove Asia Link took into account Asia Link's cooperation with the U.S. Government, as well as Asia Link's assurances of future compliance with the EAR. In accordance with Section 744.16(c), the Deputy Assistant Secretary for Export Administration has sent written notification to Asia Link informing this entity of the ERC's decision to remove it from the Entity List. This final rule implements the decision to remove this one Hong Kong person from the Entity List.

Specifically, this rule removes the following person from the Entity List:

The removal of Asia Link from the Entity List (from Hong Kong, as described above) eliminates the existing license requirement in Supplement No. 4 to part 744 for exports, reexports and transfers (in-country) to this person. However, the removal of Asia Link from the Entity List does not relieve persons of other obligations under part 744 of the EAR or under other parts of the EAR. Neither the removal of a person from the Entity List nor the removal of Entity List-based license requirements relieves persons of their obligations under General Prohibition 5 in Section 736.2(b)(5) of the EAR, which provides that, “you may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.” Nor do such removals relieve persons of their obligation to apply for export, reexport or in-country transfer licenses required by other provisions of the EAR. BIS strongly urges the use of Supplement No. 3 to part 732 of the EAR, “BIS's `Know Your Customer' Guidance and Red Flags,” when persons are involved in transactions that are subject to the EAR.

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on June 28, 2010, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before July 13, 2010. Any such items not actually exported or reexported before midnight, on July 13, 2010, require a license in accordance with this rule.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 13, 2009, 74 FR 41325 (August 14, 2009), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

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

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by the OMB under control numbers 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Miscellaneous and recordkeeping activities account for 12 minutes per submission. Total burden hours associated with the Paperwork Reduction Act and Office and Management and Budget control number 0694-0088 are expected to increase slightly as a result of this rule.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States. ( See 5 U.S.C. 553(a)(1)). BIS implements this rule to prevent items from being exported, reexported or transferred (in country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, then entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable.

The Department published a proposed rule in the Federal Register , 75 FR 6321, on February 9, 2010 (Public Notice 6887), proposing to amend sections of 22 CFR 22. Specifically, the rule proposed changes to the Schedule of Fees for Consular Services and provided 30 days for comments from the public. In response to requests by the public for more information and a further opportunity to submit comments, the Department subsequently published a supplementary notice in the Federal Register, 75 FR 14111, on March 24, 2010 (Public Notice 6928). The supplementary notice provided a more detailed explanation of the Cost of Service Study (CoSS), the activity-based costing model that the Department used to determine the proposed fees for consular services, and reopened the comment period for an additional 15 days. During this and the previous 30-day comment period, 1,797 comments were received, either by email or through the submission process at http://www.regulations.gov . The current notice reflects responses by the Department to the comments received in the 45 days during which the comment period for this proposed rule was open.

Nonimmigrant visa fees, including fees for Machine-Readable Visas (MRVs) and Border Crossing Cards (BCCs), have been modified pursuant to a separate rule published May 20, 2010 at 75 FR 28188. These modified fees are reflected in Item 21 of the Schedule of Fees below alongside the modified fees addressed in the present notice.

As explained when the revised Schedule of Fees was published as a proposed rule, the Department of State derives the statutory authority to set the amount of fees for the consular services it provides, and to charge those fees, from the general user charges statute, 31 U.S.C. 9701. See, e.g., 31 U.S.C. 9701(b)(2)(A) (“The head of each agency * * * may prescribe regulations establishing the charge for a service or thing of value provided by the agency * * * based on * * * the costs to the Government; * * * the value of the service or thing to the recipient; * * * public policy or interest served; and * * * other relevant facts.”). As implemented through Executive Order 10718 of June 27, 1957 (22 FR 4632), 22 U.S.C. 4219 further authorizes the Department to establish fees to be charged for official services provided by U.S. embassies and consulates. When a service provided by the Department “provides special benefits to an identifiable recipient beyond those that accrue to the general public,” guidance issued by the Office of Management and Budget (OMB) requires as follows: “user charges will be sufficient to recover the full cost to the Federal Government * * * of providing the service * * * or good * * * .” OMB Circular A-25, ¶ 6(a)(1), (a)(2)(a).

Other authorities allow or require the Department to charge fees for consular services, but do not determine the amount of such fees, as the amount is statutorily determined, such as the $13 fee, discussed below, for machine-readable Border Crossing Cards (BCCs) for certain Mexican citizen minors. Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Public Law 105-277, 112 Stat. 2681-50, Div. A, Title IV, § 410(a) (reproduced at 8 U.S.C. 1351 note).

A number of other statutes address specific fees relating to passport processing, immigrant and nonimmigrant visa processing, and overseas citizens services. For example, 22 U.S.C. 214 requires the Department to charge passport application and execution fees. Another law authorizes the Department to establish a fee for the processing of applications for “diversity visas,” to recover the costs of the “visa lottery” program conducted under Immigration and Nationality Act (INA) sections 203 and 222, 8 U.S.C. 1153, 1201. See Omnibus Consolidated Appropriations Act, 1997, Public Law 104-208, 110 Stat. 3009, Div. C, Title VI, § 636 (reproduced at 8 U.S.C. 1153 note). Only those applicants who register in the lottery and are selected may apply for a visa, and those who choose to apply must pay the fee; the fee incorporates the costs to the Department of administering the lottery program. Id. Another statute authorizes the Department to collect and retain surcharges on passports and immigrant visas to help pay for efforts to enhance border security. See 8 U.S.C. 1714. While these fees were originally frozen statutorily at $12 and $45 respectively, subsequent legislation authorized the Department to amend these amounts administratively, provided the resulting surcharge is “reasonably related to the costs of providing services in connection with the activity or item for which the surcharges are charged.” Department of State Authorities Act of 2006, Public Law 109-472, 120 Stat. 3554, § 6(b)(1) (reproduced at 8 U.S.C. 1714 note). Furthermore, several statutes deal with fees for nonimmigrant visas, including the issuance fee statute, 8 U.S.C. 1351 (establishing reciprocity as the basis for the nonimmigrant visa issuance fee), and the MRV and BCC fees modified in the rule published at 75 FR 28188 on May 20, 2010.

Certain persons are exempted by law or regulation from paying specific fees or are expressly made subject to a special fee regime by law. These are noted in the Schedule of Fees below. They include, for instance, several exemptions from the nonimmigrant visa application fee for certain individuals who engage in charitable activities or who qualify for diplomatic visas. See 8 U.S.C. 1351; 22 CFR 41.107(c). Certain Iraqi and Afghan nationals are similarly exempt from paying an immigrant visa application fee. See National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, 122 Stat. 3, Div. A, Title XII, § 1244(d) (reproduced at 11 U.S.C. 1157 note); Omnibus Appropriations Act, 2009, Pub. L. 111-8, 123 Stat. 524, Div. F, Title VI, § 602(b)(4) (reproduced at 8 U.S.C. 1101 note). As another example, qualifying Mexican citizen minors pay a special BCC fee well below what it costs the Department to process such cards. Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Public Law 105-277, Div. A, Title IV, § 410(a), reproduced at 8 U.S.C. 1351 note.

While for most consular services, the funds collected from fees must be deposited into the Treasury, various statutes permit the Department to retain the fees it collects for certain services. See, e.g., 31 U.S.C. 3302(b); 2 GAO Principles of Appropriations Law, 6-199 (3d ed.) (“fees * * * paid * * * to the government * * * must be deposited in the Treasury as miscellaneous receipts, absent statutory authority to the contrary”). Among these statutes are the following: (1) The MRV and BCC fees, Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Public Law 103-236, Title I, § 140(a)(2), 112 Stat. 2681-50 (reproduced at 8 U.S.C. 1351 note); (2) the passport expedite fee, Department of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1995, Pub. L. 103-317, 108 Stat. 1724, Title V (reproduced at 22 U.S.C. 214 note); (3) the passport and immigrant visa security surcharges, 8 U.S.C. 1714; (4) the Western Hemisphere Travel Initiative (WHTI) surcharge, which is embedded in the passport book and passport card application fees, 22 U.S.C. 214(b)(1), 22 CFR 51.51(d) (WHTI surcharge “will be recovered * * * from within the passport fee reflected in the Schedule of Fees for Consular Services”); (5) the diversity visa lottery fee, Omnibus Consolidated Appropriations Act, 1997, Public Law 104-208, Div. C, Title VI, § 636 (reproduced at 8 U.S.C. 1153 note); (6) the fee for an affidavit of support, Consolidated Appropriations Act, 2000, Public Law 106-113, 113 Stat. 1501, Div. A, Title II, § 232(a) (reproduced at 8 U.S.C. 1183a note); and (7) the fee to process requests from participants in the Department's Exchange Visitor Program for a waiver of the two-year home-residence requirement, 22 U.S.C. 1475e. The Department also has available to it a portion of certain fraud prevention and detection fees charged to petitioners of H- and L-category visas. 8 U.S.C. 1184(c)(12)(A), (13)(A), 1356(v)(2)(A).

With certain exceptions—such as the reciprocal nonimmigrant visa issuance fee and the reduced Mexican citizen minor BCC fee described above, as well as a congressionally mandated $1 surcharge on all nonimmigrant visas, see William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110-457, 122 Stat. 5044, Title II, § 239 (reproduced at 8 U.S.C. 1351 note)—the Department of State generally sets consular fees at an amount calculated to achieve recovery of the costs to the U.S. Government of providing the consular service, in a manner consistent with general user charges principles, regardless of the specific statutory authority under which the fees are authorized. See 31 U.S.C. 9701(b)(2)(A). As set forth in OMB Circular A-25, “[w]hen a service * * * provides special benefits to an identifiable recipient beyond those that accrue to the general public, a charge will be imposed * * * to recover the full cost to the Federal Government for providing the special benefit * * * .” See OMB Circular No. A-25, ¶ 6(a)(2)(a). The OMB guidance covers all Federal Executive Branch activities that convey special benefits to recipients beyond those that accrue to the general public. See id., §§ 4(a), 6(a)(1).

While fees are thus set in accordance with full cost recovery, there are limited circumstances, such as the passport book and card application fees for minors, in which costs are allocated to related fees or the Department charges a fee that is lower than the cost of providing the service. This may be done in order to account for statutory requirements or the potential impact on the public of setting those fees at a higher level. See 31 U.S.C. 9701(b)(2) (user charges based on costs to the Government, the value of the service to the recipient, the public policy or interest served, and other relevant facts).

The Department reviews consular fees periodically to determine each fee's appropriateness in light of OMB guidance. The Department has made the changes set forth in this proposed Schedule of Fees accordingly. In line with this guidance, the Department contracted for an independent CoSS, which conducted its work from August 2007 through June 2009. The CoSS used an activity-based costing model to determine the current direct and indirect costs to the U.S. Government associated with each consular good and service the Department provides. The contractor, QED Group, LLC, its subcontractor Booz Allen Hamilton, Inc., and Department staff surveyed and visited domestic and overseas consular sites handling a representative sample of all consular services worldwide. The study identified the cost of the various discrete consular goods and services, both direct and indirect, and the study's results formed the basis of the changes herein proposed to the Schedule of Fees. Activity-based costing in general and the methodology employed by the CoSS to arrive at the various costs of the consular services provided by the Department are discussed in detail in the supplementary notice of proposed rulemaking, at 75 FR 14111.

In situations where services are provided with enough frequency to develop a reliable estimate of the average time involved, the Schedule of Fees generally sets a flat service fee. In situations that require services to be performed away from the office or during after-duty hours, the Department calculates the fee based on a consular “hourly rate”; this rate, which appears at Item 75 on the Schedule of Fees below, represents the cost per hour or part thereof per consular employee. Whether by flat fee or fee determined by hourly rate, the fees the Department charges are designed to recover—at most—the full costs the Department expects the U.S. Government to incur over the period the Schedule of Fees will be in effect. The Department based all fees in the Schedule of Fees on projected Fiscal Year 2010 workloads.

As a result of the CoSS's findings and the Department's analysis of these findings, the Department hereby implements, in the form of an interim final rule allowing 60 additional days for public comment, adjustments to the Schedule of Fees with respect to a number of consular services, as discussed below. The fees for other consular services remain unchanged. As noted above, adjustments to nonimmigrant visa fees, including those for BCCs, have been promulgated under a separate rule published May 20, 2010, see 75 FR 28188, and these adjustments are reflected in the revised Schedule of Fees below.

The last broad set of amendments to the Schedule of Fees occurred in 2005, though the Department has made piecemeal amendments to it since that time. Some fees, including Items 31(a) and (b) and 35(d), are set by the Department of Homeland Security (DHS). These DHS fees were most recently updated by that agency on July 30, 2007, and are potentially subject to change in the near future. See 75 FR 33447 (June 11, 2010) (proposed rule on DHS fees). The Department of State lists these DHS fees in the Department of State Schedule of Fees for cashiering purposes only; a complete list of fees collected from applicants by Department of State cashiers are posted in every embassy and consulate so that when customers pay fees to these cashiers they can compare the amount requested to the posted schedule. The Department of State has no authority to set DHS fees, and any time DHS changes its fees, the Department of State updates those items. DHS lists these fees at 22 CFR 103.7(b)(1). As of June 18, 2010, these fees and their amounts were as follows:

• Filing immigrant visa petition: Petition to classify status of alien relative for issuance of immigrant visa (Item 31(a) on the Department of State Schedule of Fees; DHS Form I-130): $355.

• Filing immigrant visa petition: Petition to classify orphan as an immediate relative (Item 31(b) on the Department of State Schedule of Fees; DHS Form I-600): $670.

• Special visa services: Waiver of immigrant visa ineligibility (Item 35(d) on the Department of State Schedule of Fees; DHS Form I-601): $545.

All CoSS estimates discussed below are based on projected workload for Fiscal Year 2010, and fees have been rounded to make them easier to collect, especially when converting from foreign currencies, which are most often used when paying for fees at posts abroad. This proposed rule also makes a conforming amendment to 22 CFR 51.51(d), which establishes the surcharge on the filing of each passport application in order to cover the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638 (reproduced at 8 U.S.C. 1185 note).

The Department is increasing the application fee for a passport book for an adult (age 16 and older) from $55 to $70. The application fee for a passport book for a minor (under age 16) will remain at $40. The CoSS calculated the cost of processing first-time passport applications for both adults and minors as $105.80, based on a projected FY 2010 workload of 11.9 million. This cost includes border security costs covered by the passport book security surcharge, discussed immediately below. Because a minor passport book has a validity of just five years, in contrast with the ten-year validity period of an adult passport book, the Department has decided to leave the minor passport book application fee at $40, and to allocate the remainder of the cost of processing minor passport book applications to the adult passport application fee.

As described in 22 CFR 51.51(d), this fee incorporates the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 (reproduced at 8 U.S.C. 1185 note). This portion of the application fee, which is embedded within the fee and not charged separately or separately itemized in the Schedule of Fees, see 22 CFR 51.51(d) (noting absence of separate itemization), has increased from $20 to $22 per application based on increased costs related to new passport agencies serving border communities.

The Department is increasing the passport book security surcharge from $20 to $40 in order to cover the costs of increased border security which includes, but is not limited to, enhanced biometric features in the document itself. The passport book security surcharge is the same for adult passport books and for minor passport books.

In the past, the Department provided extra pages in a customer's passport, to which foreign countries' visas may then be affixed, at no charge. The CoSS found that the cost of the pages themselves, of having the pages placed in the book in a secure manner by trained personnel, and of completing the required security checks results in a cost to the U.S. Government of $82.48, based on a projected FY 2010 workload of 218,000 applicants. Therefore, the Department will charge $82 for this service. The costs associated with adding additional visa pages to a passport book are described in greater detail in the supplementary notice, 75 FR 14111, 14113 (Mar. 24, 2010). Another alternative to additional visa pages is to request, at the time of applying for a passport, the larger 52-page passport book offered by the Department for travelers who anticipate that they will need more than 28 visa pages. Any passport applicant may request a larger book at the time of application for no additional fee. The Department will make information about this option more widely available to customers both domestically and overseas, to ensure that applicants are able to take advantage of it.

The CoSS calculated that the cost of processing first-time applications for adult and minor passport cards is $77.59, based on an FY 2010 workload projection of 1.56 million cards, and that adjudication costs associated with a passport card are the same as those associated with a passport book. Nevertheless, the card is intended to be a substantially less expensive document than the passport book, for the convenience of citizens who live close to land borders and cross back and forth frequently. Therefore, the Department has decided only to raise the adult passport card application fee from $20 to $30, and the minor passport card application fee from $10 to $15. See 31 U.S.C. § 9701(b)(2) (user charge based on cost, value to the recipient, public policy or interest served, and other relevant facts).

As described in 22 CFR 51.51(d), this application fee incorporates the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 (reproduced at 8 U.S.C. 1185 note). This portion of the fee, which is embedded within the fee and not charged separately or separately itemized in the Schedule of Fees, see 22 CFR 51.51(d) (noting absence of separate itemization), has increased from $20 to $22 for the adult passport card and from $10 to $15 for the minor passport card, and is based on increased costs related to new passport agencies serving border communities.

When an applicant for a passport book or passport card does not present evidence of citizenship, the Department must verify his or her U.S. citizenship. The Department is raising the fee for this service from $60 to $150 based on the cost of providing the service, and notes that applicants can avoid paying this fee by providing adequate citizenship documentation when applying for a passport rather than to request costly, time-intensive research.

The CoSS found that the cost of accepting and processing an application for a Consular Report of Birth Abroad of a Citizen of the United States is $197.28 based on an FY 2010 workload projection of 80,000 applications. Based on that analysis, the Department is raising the fee from $65 to $100, still significantly less than cost, based on its view that too high a fee might deter U.S. citizen parents from properly documenting the citizenship of their children at birth, a development the Department feels would be detrimental to national interests. See 31 U.S.C. 9701(b)(2).

The CoSS demonstrated that documenting a U.S. citizen's renunciation of citizenship is extremely costly, requiring American consular officers overseas to spend substantial amounts of time to accept, process, and adjudicate cases. A new fee of $450 will be established to help defray a portion of the total cost to the U.S. Government of documenting the renunciation of citizenship. While the Department decided to set the fee at $450, this fee represents less than 25 percent of the cost to the U.S. Government. The Department has determined that it must recoup at least a portion of its costs of providing this very costly service but set the fee lower than the cost of service in order to lessen the impact on those who need this service and not discourage the utilization of the service, a development the Department feels would be detrimental to national interests. See 31 U.S.C. 9701(b)(2).

The CoSS found that the average cost of assisting U.S. citizens in making arrangements for a deceased non-U.S. citizen family member abroad is $388.19 per case based on an FY 2010 workload projection of 50,000 cases. The Department had previously charged a fee of $265 per hour, the then-applicable fee for consular time (discussed below), plus expenses. The Department has decided to set the new fee for death and estate services at significantly lower than costs—$200 plus expenses, per case—in order to assist bereaved families.

In the past, the Department has charged a single application processing fee for processing an immigrant visa, regardless of category: $355. The Department has concluded, however, that it will be more equitable to set the fee for each immigrant visa category at a level commensurate with the average cost of producing that particular product. The CoSS found, however, that applications for certain immigrant visa categories cost more to process than others. Accordingly, the Department has created in the current Schedule of Fees a four-tiered immigrant visa application processing fee structure based on CoSS estimates for each discrete category of immigrant visa. The application fee for a family-based (immediate relative and preference) visa (processed on the basis of an I-130, I-600 or I-800 petition) will be $330. The application fee for an employment-based visa (processed on the basis of an I-140 petition) will be $720. Other immigrant visa applications (including for diversity visa applicants, I-360 self-petitioners, special immigrant visa applicants, and all others) will have a fee of $305. As noted above, certain qualifying Iraqi and Afghan special immigrant visa applicants are statutorily exempt from paying a processing fee. National Defense Authorization Act for Fiscal Year 2008, Public Law 110-181, Div. A, Title XII, § 1244(d) (reproduced at 11 U.S.C. 1157 note); Omnibus Appropriations Act, 2009, Public Law 111-8, Div. F, Title VI, § 602(b)(4) (reproduced at 8 U.S.C. 1101 note).

The Department is increasing the immigrant visa security surcharge, which all applicants except those statutorily exempted must pay, from $45 to $74 to cover increased security costs as determined by the CoSS, including the costs of the enhanced security screening requirements associated with fingerprint collection which had previously been included in the immigrant visa application processing fee.

The Department is raising the fee paid by winners of the Diversity Visa lottery who apply for immigrant visas from $375 to $440 based on CoSS estimates for an FY 2010 workload projection of 81,000 applications. The Department has authority to collect the surcharge only from persons who are selected through the lottery process and therefore qualify to apply for a Diversity Visa, and to set it at a level sufficient to cover the entire cost of running the lottery. Omnibus Consolidated Appropriations Act, 1997, Public Law 104-208, Div. C, Title VI, § 636 (reproduced at 8 U.S.C. 1153 note).

The Department charges the affidavit of support review fee for all affidavits of support reviewed at the National Visa Center in connection with an application for an immigrant visa. The purpose of the review is to ensure that each affidavit is properly completed before the National Visa Center forwards it to a consular post for adjudication. The Department is increasing the fee from $70 to $88 to reflect the increase in the cost of providing this service to immigrant visa applicants, as determined by the CoSS.

The CoSS found that determining the status of persons who claim to be lawful permanent residents of the United States, but do not have documentation to prove this fact, has become less costly than before due to advances in automation making it easier to verify U.S. immigration status. As such, the Department will lower the fee from $400 to $380.

The CoSS found the cost to the U.S. Government of providing documentary services overseas is $76.36 per service based on a projected FY 2010 workload of 380,000 services. These are primarily notarial services, certification of true copies, provision of documents, and authentications. However, the Department is raising these fees only from $30 to $50, lower than cost, in order to minimize the impact on the public. See 31 U.S.C. 9701(b)(2).

The CoSS found that the cost to the U.S. Government of processing letters rogatory and Foreign Sovereign Immunities Act judicial assistance cases is $2,274.59 based on a projected FY 2010 workload of 1,400 services. The Department will accordingly raise the fee for these services to $2,275. The costs associated with processing letters rogatory and Foreign Sovereign Immunities Act judicial assistance cases are described in greater detail in the supplementary notice, 75 FR 14111, 14113 (Mar. 24, 2010).

Several services fall under this heading, and fees for three of the services will be raised as a result of the CoSS's conclusions on the costs to the U.S. Government. The new fees appear in the Schedule of Fees below.

The Department previously charged a consular time fee of $265 per hour, per employee. The CoSS estimated that consular time charges for services performed away from the office or outside business hours now only costs $231 per hour, per employee. Therefore, the Department will lower this fee to $231 per hour.

As noted, the proposed rule was published for comment on February 9, 2010. During the comment period, which initially closed March 11, 2010, and was subsequently extended for an additional 15-day period ending April 8, 2010, the Department received 1,797 comments.

The majority of the comments received (1,271) expressed concern about the increase in the passport book fees. Two hundred and twenty-eight commenters cited the current economic climate as a reason to not increase fees or requested that the Department wait until the economy improves. The American Automobile Association (AAA) commented regarding the possibility of citizens being deterred from purchasing a passport or processing a renewal and how this would affect the travel business. AAA recognized the need of the Department to cover its costs, but suggested the changes be delayed until the nation shows further signs of economic recovery. The American Association of Travel Agents (AATA) described the increase in fees as being at “cross-purposes” with efforts to stimulate business and adding costs to AATA's business. Furthering its point, AATA argued that contrary to popular belief, international travel generates revenue for American businesses. Rather than arguing for no fee increases whatsoever, AATA requests that the increases not be as great as proposed, in order to encourage travel during an economic recession. Finally, United Air Lines, Inc., and the U.S. Travel Association submitted a joint comment underscoring that the change to the passport fee may deter international travel by U.S. citizens and will represent as a substantial increase in costs to their businesses as United Air Lines pays for the U.S. passports of its crew members.

While the Department of State is aware of the financial impact this fee increase may have on individuals and businesses, its passport processing operations must be self-sustaining to the extent possible, and it has accordingly set these fees at a level that will allow cost recovery—and not more. The Department also maintains that the increase in passport fees is not significant in comparison with the overall costs of international travel.

One comment, submitted jointly by the Identity Project, the Consumer Travel Alliance, the Center for Financial Privacy and Human Rights, and John Gilmore (collectively, “Identity Project”), suggested that the Department “should stop including RFID chips in passports and passport cards, instead of increasing the fees to cover the costs of RFID chips.” Identity Project suggested that it would be “more secure for passport holders” and called the chips “a surveillance and control feature, not a security feature.” While such comments are not directly relevant to the fees proposed in this rule, the Department would offer that the purpose of such chips is to provide instant confirmation of, or a link to, electronic records that confirm the document has not been altered and is in fact a genuine U.S. passport document; their purpose is not to permit the “surveillance” of passport holders. The comment also insisted that passport requirements, such as the Western Hemisphere Travel Initiative—particularly the requirement of a passport book or card to enter and leave the United States—violate the First Amendment rights of U.S. citizens, including the right to assemble and the right to petition for redress of grievances. The comment suggests that the Department should consider “rescinding or amending the WHTI regulations.” Yet the change in passport fees covered by this rule does not have an impact in this arena. The Identity Project fails to recognize that WHTI was mandated by Congress, and its requirements—including the requirement of a passport book or card to enter or leave the United States—cannot be undone by the Department. The Identity Project concluded that “the Department should eliminate RFID chips from passport books and cards, and eliminate the requirement for U.S. citizens to have or display a passport or other government-issued credential as a prerequisite to the exercise of their Constitutional and international treaty rights to depart from, and return to, U.S. territory, by any means and to or from any other country or territory, or to or from international waters or airspace.” Those aims are quite clearly outside the scope of this rule, which merely modifies the fees charged to applicants for passport books and cards.

Two commenters, including the Identity Project, questioned how the Department decided to deviate from CoSS findings to keep the passport card fee artificially low, below cost.

One of those comments urged the Department to identify and apply a consistent standard to govern deviations from full-cost principles. The Department does apply such a standard. Where the Department believes that the provision of a given overseas citizens service is important, yet setting the fee above a certain amount will deter U.S. citizens overseas from taking advantage of it, the Department may make a policy decision to offer the service at a reduced fee or at no fee. The Department bases its estimate of the level at which U.S. citizens will be deterred from taking advantage of the service by undertaking extensive consultations with experienced consular officers and senior Department managers. Included among these services are the Consular Report of Birth Abroad (as explained elsewhere in this rule), documenting renunciation of citizenship, and death and estate services. Also included are several no-fee emergency services provided to U.S. citizens in peril abroad or otherwise in an emergency situation. The Department may also make a decision to set a given fee below cost where the cost to the Department of providing the service is considerably higher than comparable services in the United States, because the overhead and support costs of operating overseas are much greater than if the services were performed in the United States, such as notarial services. See 31 U.S.C. 9701(b)(2) (user charge based on cost, value to the recipient, public policy or interest served, and other relevant facts).

Those commenters who argued that the Department sets the passport card fee at an arbitrarily low level have, in the Department's view, misconceived the purpose of the passport card, as articulated by Congress. Members of Congress have indicated that the price of a passport card should remain low compared to that of a passport book, in order not to discourage American citizens who live near the nation's land borders from crossing on a regular basis for a number of reasons, including commerce, tourism and visiting family. In accordance with this preference, the Department has determined that the cost of a passport card should remain at the level established in this interim final rule, even though the adjudication and production process for passport cards is roughly the same as for passport books, and thus the U.S. Government's costs are roughly the same. Another reason the price of a passport card is lower than that of a passport book is that the card omits the costs of no-fee overseas citizens services, since travelers using the card are likely to be on relatively brief cross-border trips such that most emergencies would be handled by travelers relying on family members and services in the United States; such costs are, however, included in the fee for the passport book. Twelve comments addressed the increased cost of the passport cards directly, but without articulating a specific concern other than the price increase.

One hundred sixteen comments addressed the fact that individuals could be deterred from purchasing a passport book with the intention of using it to cross the Canadian or Mexican borders for travel and/or business, due to the higher price of the book compared to the card. In separate letters to Secretary of State Hilary Rodham Clinton, Congressman Brian Higgins and Congressman Christopher Lee of New York expressed concern that the increase in the price of passport books would make them less affordable for the average American citizen, and would discourage citizens from conducting cross-border commerce. As noted above, the Department does not believe that individuals will be deterred by the increased price of a passport from engaging in cross-border travel. Moreover, for those who desire a less expensive product, the passport card is available for cross-border land travel. As explained, the Department has made the price of a passport card lower than the cost associated with producing and adjudicating such cards largely to ameliorate the impact of the Western Hemisphere Travel Initiative's passport requirement on those living near our borders with Canada and Mexico who cross frequently for a number of reasons including commerce and visiting family. By keeping the card fee low, cross-border business and travel is still a possibility without the need to purchase the passport book at a higher price.

A handful of authors suggested means for encouraging the purchase of passports by introducing certain programs such as non-profit business discounts, family discounts for multiple purchasing, and special senior citizen or student rates. As noted at several points above, the Department sets its consular fees with the objective of full cost recovery, though in some circumstances—such as with some overseas citizen services whose costs are allocated to fees for passport books—the Department has made a decision to set the fees lower than the full cost of providing that particular service. In future fee-setting exercises, the Department will consider this proposal for additional services for which the fee for a particular service is below the cost of providing that service. A comment from the National Association of Passport and Visa Services (NAPV) requested that the Department allow issuance of two passport books to a single individual for frequent travelers: a regular ten-year-validity book, and another book with a two-year period of validity. The second passport would allow individuals to continue to travel internationally on one passport while allowing them to submit the second passport to foreign governments for visas for future travel, thereby accommodating the requirement of many governments that passports be physically relinquished to their embassies in order for the latter to process and affix the visa. NAPV suggested a lower price point for the second passport book, but according to the CoSS, the cost of printing and adjudication of such a passport would be the same regardless of the length of time the second book would be valid. NAPV suggests a limited cost recovery solution to a problem, which it admits applies to only “a select group of frequent business travelers and airline pilots.” The Department does not believe that given the limited number of beneficiaries, the proposal justifies charging below the full cost for these two-year passport books and assigning the difference to the price of 10-year passport books.

Twenty-two of the comments expressed support for the proposed fee changes in order to provide added security to American citizens, travel documents, and increase the level of service provided by the Department.

Two hundred and thirty-seven comments were received regarding the fee for additional passport visa pages. Most writers expressed concern that a once-free service will now cost $82. The majority of those who commented said they were business professionals who are required to travel frequently for their jobs, and questioned how inserting pages into a passport book could cost so much. Yet as explained in the supplementary notice, 75 FR 14111, 14113, the cost of that service includes not only the pages themselves, the employee time spent affixing the pages into a passport, endorsing the passport, and performing a quality-control check on the expanded passport; but also the costs of trained labor, supervisors, and overhead; of performing a name check of the applicant prior to providing the service, and a share of the overall costs of no-fee emergency services provided to Americans overseas—costs incorporated into and assigned across all passport book services. The Department does offer a larger passport for travelers who anticipate that they will need more visa pages. Any passport applicant may request a larger book (52 pages, instead of the standard 28) at the time of application for no additional fee. The Department will make information about this option more widely available to customers both domestically and overseas, to ensure that applicants are able to take advantage of it.

Over one hundred comments requested that the Department raise the execution fee for passports (Item 1 on the Schedule of Fees). Those who commented are predominantly county clerks from border states whose offices serve as passport acceptance agencies along with the U.S. Postal Service (USPS). In total, the Department partners with approximately 9,400 acceptance agencies, the majority of which are U.S. Post Offices. The execution fee was lowered in 2008 from $30 to $25, and remains at $25 in the current Schedule of Fees. Most of these comments stated that the current $25 does not cover the facilities' existing costs, citing in particular the increased costs associated with the institution of a requirement in 2009 that traceable mail be used to forward all applications to the Department for processing. The Department arrived at the current fee of $25 based on a unit cost agreed upon by USPS and the Department's Consular Affairs Passport Services Office in 2008. The Department is willing to review and, if necessary, set a new amount for the execution fee, but will do so based on actual cost data. The Department will engage with USPS and its other acceptance agency partners in the coming year to update existing cost estimates for performing this service, and will analyze whether a fee increase is warranted.

Twenty comments addressed the fee for documentary services, generally expressing the concern that the fees the Department charges for notarial services overseas are far greater than the fees banks and other offices charge for such services domestically. The costs of performing such services overseas—by expatriate staff, in secure buildings—is in fact higher than it might be at a U.S. bank. Despite the increase, the cost to the Department of providing these services is still greater than is being charged to the public, as explained in the section entitled “Providing Documentary Services” in the supplementary information above.

One comment questioned whether the increase of the fee for processing letters rogatory was reasonable. This individual agreed with the increase in passport book fees and described them—incorrectly—as a routine increase fostered by the recent backlog and demand for the document. With regard to the fee for processing letters rogatory, however, the commenter was concerned whether the fee would be too financially burdensome on those who need such services and must pay for them. Yet letter rogatory services are complex and time-consuming, generally stretching over months and requiring a considerable amount of consular time and resources. Some of the activities involved in performing letter rogatory services are described in the supplementary notice, 75 FR 14111, 14113. These services are relatively infrequent—there were only 449 performed in FY 2008, the last base year used in the CoSS—and the requests are varied, covering both criminal and civil matters ranging from family law to business litigation. The fee for this service is also generally minor compared to the overall expenses related to litigation. Moreover, the Department provides information to the public on alternative methods of seeking judicial assistance and actively recommends international conventions on judicial assistance, such as the Hague Service and Evidence Conventions, for the consideration of countries that are not yet parties to these agreements. The United States has treaty relationships concerning judicial assistance with over 70 countries, and the number of countries that do not have alternative procedures to the letters rogatory procedure is small. The impact of the price increase for these services will therefore be limited in scope.

Several authors claimed that the increase in the cost of the application for a Consular Report of Birth Abroad (CRBA) of a citizen of the United States will deter American citizens from declaring the birth of children born abroad. The fee is substantially less than the cost, $100 compared to a cost of $197.28. The Department decided to charge less than cost precisely to prevent American citizens from being deterred from declaring the birth of a child while overseas which would be detrimental to national interests. Two commenters in a joint submission complained that the Department has failed to provide data to support its concern that too high a CRBA fee might deter U.S. citizen parents from properly documenting their child's birth. As discussed above, the Department based this determination on its extensive experience in the area. Moreover, a situation of undocumented birth often creates serious problems for the child in the future when he or she attempts to prove his or her citizenship for purposes of acquiring a U.S. passport or obtaining another benefit of U.S. citizenship. For these reasons, the Department has made a policy decision to keep the CRBA fee as affordable as possible, even though the cost to the U.S. Government of processing a CRBA is higher than $100. See 31 U.S.C. 9701(b)(2). Other CRBA-related comments cited challenges regarding the exchange rate affecting the cost of this service and the lack of need should the child qualify for citizenship of the nation of residence. With respect to the latter submission, while the Department encourages parents to document the birth of a U.S. citizen—including one who holds another country's citizenship as well—whether parents choose to do so is at their discretion.

Some commenters argued that the fee for documentation for renunciation of citizenship—$450—is too costly, especially since that service has heretofore been provided at no charge. The Department has determined that it must recoup at least a portion of its costs of providing this very costly service. In order to lessen the impact on those who need this service and not discourage the utilization of the service, the Department decided to set the fee at $450, less than 25 percent of the cost to the U.S. Government. See 31 U.S.C. 9701(b)(2).

Seven comments, including the previously referenced joint comment from United Air Lines and the U.S. Travel Association, requested more information on the Cost of Service Study itself. In response, the Department published the supplementary notice of March 24, 2010, see 75 FR 14111, and allowed an additional 15 days for public comment. The Department received one further comment from United Airlines and the U.S. Travel Association, on April 8, 2010, within the 15-day period. That comment made an additional request for actual cost and related data and specifically requested: Specific inputs used to determine cost for the U.S. passport book and passport card; that the Department confirm how the CoSS ensured that administrative support costs were correctly attributed to individual consular services and that these costs for positions not dedicated to fee-based consular activities were excluded from the CoSS; and that the Department confirm whether the CoSS accounted for the transition to the DS-160 electronic nonimmigrant visa application. United Air Lines and the U.S. Travel Association also requested that the Department suspend final publication of the rules, release additional data supporting its proposed fee increases, and hold a public meeting to address questions from the public.

Concerning the request for specific inputs used to determine the cost for the U.S. passport book and card, such data sets are being published in the Federal Register together with this rule. With regard to the question of administrative support costs and the DS-160, the Department has addressed those concerns of United and the U.S. Travel Association in the interim final rule concerning MRV and BCC fees, at 75 FR 28188 (May 20, 2010), and directs the reader to the discussion there.

Based on a review of all the comments, the Department has determined that it is unnecessary to suspend publication of this interim final rule pending release of additional data or a public meeting, though it will provide an additional post-promulgation comment period of 60 days, and will consider any comments received prior to publishing the rule in final form. As explained above, the Department has provided information regarding the basis for the fee changes in the notice of proposed rulemaking on February 9, 2010, provided significant additional information in response to the requests of United Air Lines, the U.S. Travel Association, and others in a supplemental notice dated March 24, 2010. The Department has provided the public a total of 45 days in which to make comments concerning the proposed fee changes. The Department determined that a supplemental written notice would provide more useful information and reach a broader public audience than a public meeting.

The Department is issuing this interim final rule with an effective date 15 days from the date of publication. The Administrative Procedure Act permits a final rule to become effective fewer than 30 days after the publication if the issuing agency finds good cause. 5 U.S.C. 553(d)(3). The Department finds that good cause exists for an early effective date in this instance for the following reasons.

As stated in the supplementary information above, the Department's mandate is to align as closely as possible its user fees for consular services with the actual, measured costs of those services. This enables better cost recovery and ensures that U.S. taxpayers do not subsidize consular services. 31 U.S.C. 9701; OMB Circular A-25. See also GAO-08-386SP, Federal User Fees: A Design Guide. The CoSS, which supports the fees set by this rule, used data from past years, as well as predictive data for Fiscal Years 2010 and 2011, to determine the amount of the fees set by this rule. The fees currently charged by the Department cover less than 73 percent of the underlying services' true cost. On a monthly basis, taxpayers are paying $23.9 million in unmet costs for consular services that should be borne by those who actually benefit from those services. In the current economic climate, this shortfall is unusually grave, exacerbating budgetary pressures and threatening other critical Department priorities. It is thus in the public's interest to make the appropriated funds currently used to fill this gap available as soon as possible.

For these reasons, and because the public's level of preparation for this fee increase is unlikely to be meaningfully improved by 15 additional days of advance warning, the Department finds that good cause exists for making this rule effective after 15 days of its publication as an interim final rule.

The Department, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that the proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6). This rule raises the application and processing fee for passports, immigrant visas, and American citizen services. The Department of State estimates that the agency will process 16,000 total employment-based immigrant visa applications, all of which fall into the E-1, E-2, E-3, E-4, and E-5 categories. (Note: The Department of Homeland Security processes domestic adjustment of status for approximately 90 percent of all employment-based immigrants; cases processed domestically do not pay Department of State fees.) The issuance of some “E” category employment-based immigrant visas may be contingent upon approval by DHS of a petition filed by a United States company, and these companies pay a fee to DHS to cover the processing of the petition. The amount of the petition fees that are paid by small entities to DHS is not controlled by the amount of the visa fees paid by individuals to the Department of State. The visa itself is sought and the application processing fees are paid for by an individual foreign national overseas who seeks to immigrate to the United States. The Department of State does not track applications for employment-based visas by the size and nature of the petitioning businesses, and therefore cannot identify the share of this impact on the small businesses versus large businesses. While some employers may choose to reimburse application costs, small businesses are not required by law to reimburse the individuals, and therefore no small businesses will be impacted. Additionally, while small entities sometimes pay judicial service fees if required for legal matters with foreign companies, they do so in very limited circumstances and in small numbers. For instance, worldwide in FY 2009, embassies and consulates arranged only 123 depositions and processed only 156 letters rogatory.

This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $1 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501-1504.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Section 5 of Executive Order 13175 do not apply to this rulemaking.

As required by 5 U.S.C. 801, the Department will submit to Congress a report regarding the issuance of this interim final rule. The report will state that it has been determined that the interim final rule is a “major rule” as defined by 5 U.S.C. 804(2). As noted in the discussion regarding the Administrative Procedure Act, and for the same reasons, the Department finds good cause that the effective date of this major rule be fifteen days after its publication as an interim final rule, since an additional 60-day delay in the effective date is impracticable and contrary to the public interest. 5 U.S.C. 808(2).

OMB considers this rule to be an economically significant regulatory action under Executive Order 12866, section 3(f)(1), Regulatory Planning and Review, Sept. 30, 1993, because it is likely to have an annual effect on the economy of $100 million or more. 58 Fed. Reg. 51735. This rule is necessary in light of the Department of State's CoSS finding that the cost of processing passports and immigrant visas and of providing other consular services has generally increased since the fees were last set. The Department is setting the fees in accordance with 31 U.S.C. 9701 and other applicable authority, as described in more detail above. See, e.g., 31 U.S.C. 9701(b)(2)(A) (“The head of each agency * * * may prescribe regulations establishing the charge for a service or thing of value provided by the agency * * * based on * * * the costs to the Government.”); OMB Circular A-25, ¶ 6(a)(2)(a). This regulation sets the fees for passports, immigrant visas, and other consular services at the amount required to recover the costs associated with providing the service in question, as explained in the preamble.

Accordingly, this rule has been submitted to OMB for review.

Details of the proposed fee changes are as follows:

The Department of State does not anticipate that demand for passport, immigrant visa, and other services affected by this rule will change significantly due to these fee changes.

With regard to immigrant visas, many categories are numerically capped; these caps artificially limit workload and keep current demand fairly stable. In FY 2009, the Department issued all available immigrant visas in employment-based categories (capped at 140,000 including adjustments of status processed domestically by the Department of Homeland Security). In FY 2009, the Department issued 96 percent of the immigrant visas available under the Diversity Visa program (capped at 50,000 including adjustments of status processed domestically by the Department of Homeland Security). Also in FY 2009, the Department issued 96 percent of the immigrant visas available for family-preference categories (capped at 226,000 including adjustments of status processed domestically by the Department of Homeland Security). When fewer visas were issued than were available under the numerical cap, it was generally due to administrative processing issues rather than lack of demand. There are nearly 3.5 million applicants currently awaiting numerically controlled visas, sufficient to fill more than eight years' workload at the current annual caps. It is reasonable to expect that the immigrant visa workload for FY 2010 and FY 2011 will remain about the same as FY 2009. These estimates do not take into account variables that the Department cannot predict at this time, such as legislative changes.

With regard to passports, the Department does not believe that passport application fees are a significant determining factor when Americans decide to travel internationally. The price of a passport book or card remains minimal in comparison with other costs associated with foreign travel. For example, taxes and surcharges alone on an international airfare can easily surpass $100, and many airlines charge substantial fees for checking bags. As a result, the Department does not believe passport demand will be significantly affected by increases of the size proposed. In addition, the Western Hemisphere Travel Initiative has now been fully implemented, and there is no new regulatory impetus for passport demand on the horizon; passport demand is expected to remain relatively stable in the near term.

This regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

This rule does not impose or alter any reporting or recordkeeping requirements.

The final rule published on January 6, 2010, was for the purpose of updating the list of Treasury bureaus and offices enumerated in 31 CFR 1.1 and 1.20, and conform the regulations with the organization of the Department as set out in Treasury Order 101-05, “Reporting Relationships and Supervision of Officials, Offices and Bureaus, Delegation of Certain Authority, and Order of Succession in the Department of the Treasury” dated February 19, 2008. The description of the revisions made to § 1.20 of this part were not clear resulting in redundant paragraphs at the end of that section.

In FR Doc. E9-31150 appearing in column 3 on page 745 in the Federal Register of Wednesday, January 6, 2010, a number of errors were made. This document amends 31 CFR 1.20 to correct those errors.

The Department of the Treasury published a notice of a proposed rule exempting five systems of records from provisions of the Privacy Act of 1974, as amended, on January 14, 2010, at 75 FR 2086. The Department also published the notices of the new systems of records in their entirety on January 14, 2010, at 75 FR 2188.

Under 5 U.S.C. 552a(j)(2), the head of a Federal agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system of records is “maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.”

To the extent that these systems of records contain investigative material within the provisions of 5 U.S.C. 552a(j)(2), the Department of the Treasury has exempted the following systems of records from various provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2):

The exemption under 5 U.S.C. 552a(j)(2) for the above-referenced systems of records is from provisions 5 U.S.C. 552a (c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g).

Under 5 U.S.C. 552a(k)(2), the head of a Federal agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system of records is “investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2).” To the extent that these systems of records contain investigative material within the provisions of 5 U.S.C. 552a(k)(2), the Department of the Treasury has exempted the following systems of records from various provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2):

The exemption under 5 U.S.C. 552a(k)(2) for the above-referenced systems of records is from provisions 5 U.S.C. 552a(c)(3), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).

As required by Executive Order 12866, it has been determined that this proposed rule is not a significant regulatory action, and therefore, does not require a regulatory impact analysis.

The regulation will not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, it is hereby certified that these regulations will not significantly affect a substantial number of small entities. The final rule imposes no duties or obligations on small entities.

In accordance with the provisions of the Paperwork Reduction Act of 1995, the Department of the Treasury has determined that this final rule would not impose new record keeping, application, reporting, or other types of information collection requirements.

On April 30, 2010, the Postal Service published a Federal Register proposed rule (75 FR 22725-22727) inviting comments on our proposal to revise the standards for Express Mail Next Day Delivery postage refunds during the time period of December 22 through December 25. When items are made available for pickup at the destination office, attempted for delivery, or delivered within two business days, postage refunds will not be available for Express Mail Next Day Delivery during this period. However, when items are not available for customer pickup at the destination office or delivery to the addressee was not attempted within two business days, Express Mail Next Day Delivery postage refunds will be authorized.

There were no comments received regarding this proposed revision.

The Postal Service adopts the following changes to the Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), which is incorporated by reference in the Code of Federal Regulations. See 39 CFR part 111.1.

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

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

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

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

• Enforce RCRA requirements and suspend or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the statutes and regulations for which Arkansas is being authorized by today's action are already effective and are not changed by today's action.

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

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

Arkansas initially received final authorization on January 25, 1985 (50 FR 1513), to implement its Base Hazardous Waste Management program. Arkansas received authorization for revisions to its program on January 11, 1985 (50 FR 1513), effective January 25, 1985; March 27, 1990 (55 FR 11192), effective May 29, 1990; September 18, 1991 (56 FR 47153), effective November 18, 1991; October 5, 1992 (57 FR 45721), effective December 4, 1992; October 7, 1994 (59 FR 51115), effective December 21, 1994; April 24, 2002 (67 FR 20038), effective June 24, 2002; and August 15, 2007 (72 FR 45663), effective October 15, 2007.

The State has made amendments to the provisions listed in the table which follows. These amendments clarify the State's regulations and make the State's regulations more internally consistent. The State's laws and regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the Federal laws and regulations. These State-initiated changes satisfy the requirements of 40 CFR 271.21(a). We are granting Arkansas final authorization to carry out the following provisions of the State's program in lieu of the Federal program. These provisions are analogous to the indicated RCRA statutory provisions or RCRA regulations found at 40 CFR as of July 1, 2005. The Arkansas provisions are from the Arkansas Pollution Control and Ecology Commission Regulation No. 23, Hazardous Waste Management, as amended December 9, 2005, effective March 23, 2006.

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

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

The following technical corrections are made to the April 24, 2002 (67 FR 20038) and August 15, 2007 (72 FR 45663) Arkansas authorization Federal Register documents. There are two types of corrections being made (the corrections have been italicized). The first type includes additions or corrections to the list of State citations for Checklist entries that were actually included in the published Federal Register documents The second type of correction is the addition of entire Checklist entries for the following Federal requirements which were inadvertently omitted from the original authorization tables.

• Land Disposal Restrictions—Phase IV—Mineral Processing Secondary Materials Exclusion, [63 FR 28556] May 26, 1998.

• Hazardous Air Pollutant Standards for Combustors [64 FR 52828-53077, September 30, 1999 as amended November 19, 1999, at 64 FR 63209-63213.].

• Methods Innovation Rule and SW-846 Final Update IIIB [70 FR 34538-34592, June 14, 2005, as amended August 1, 2005; 70 FR 44150-44151].

1. In the entry for Checklist 107, the citation “261.4(b)(15)” is corrected to read “261.4(b)(13) ”.

2. In the entry for Checklist 109, add 268.46, 268, Appendix II.

3. In the entry for Checklist 110:

• The citation “261.4(a)(1)” is corrected to read “261.4(a)(10) ”.

• The citation “261, Appendix VIII” is corrected to read “ 261, Appendix VII”.

4. In the entry for Checklist 114, add 266.103(c)(1)(xi) introductory paragraph.

5. In the entry for Checklist 118, add 265.316(b) and (c).

6. In the entry for Checklist 122, add 261.4(b)(13) and (b)(14), 264.1(g)(2), 265.1(c)(6).

7. In the entry for Checklist 124, add 264.1(g)(6), 265.1(c)(10), 268.1(e)(4) intro, 268.1(e)(5), 268.7(b)(3)(ii), 268.9(a), 268.40(b), 270.42 Appendix I.

8. In the entry for Checklist 126, add 265.190(a); 265.314(c).

9. In the entry for Checklist 135, add 261.3(c)(2)(ii)(B).

10. In the entry for Checklist 137, add 264.1(g)(6), 265.1(c)(10), 266.23(a), 266 Appendix XIII, 268.2(g) and (i).

11. In the entry for Checklist 140, the citation “§ 261.3(a)(2)(iv)(G)” is corrected to read §§ 261.3(a)(2)(iv)(E)-(G)”.

12. In the entry for Checklist 142 B: Add: 261.6(a)(3)(ii), 268.1(f) intro and (f)(1), 270.1(c)(2)(viii) intro and (c)(2)(viii)(A).

13. In the entry for Checklist 142 C, add 268.1(f)(2), 270.1(c)(2)(viii)(B).

14. In the entry for Checklist 142 D, add 268.1(f)(3), 270.1(c)(2)(viii)(C)

15. In the entry for Checklist 144, the citation “270.10(e)(4)” should be corrected to read “270.10(e)(5 )”.

16. In the entry for Checklist 148: The citation “270.7(d)(f)” is corrected to read “270.7(d)-(f) ”.

17. In the entry for Checklist 151:

• Add: 268.1(c)(3) intro through (c)(3)(ii), 268.1(c)(4), 268.1(e)(3), 268.1(e)(4), 268.1(e)(5), 268.42/Table 1

• The citation “268.(a)” is corrected to read “268.40(a) ”.

18. In the entry for Checklist 154, 154.1, 154.2, 154.3, 154.4, 154.5, and 154.6, add 264.13(b)(6) and (b)(8), 264.15(b)(4), 264.73(b)(3) and (b)(6), 264.77(c), 264.179, 264.200, 264.232, 264.1030(b), 264.1033(a)(2)(i)&(ii), 264.1033(f)(2)(vi)(B), 264.1033(k) through (o), 264.1034(b) intro, 264.1035(c)(9) and (10), 264.1035(d), 264.1050(b), (c) and (f), 264.1055, 264.1058(e), 264.1064(g)(6), 265.1(b), 265.13(b)(6) and (b)(8), 265.15(b)(4), 265.73(b)(3) and (b)(6), 265.77(d), 265.178, 265.202, 265.231, 265.1030(b), 265.1033(a)(2) intro, 265.1033(f)(2)(vi)(B), 265.1033(j) intro, 265.1033(j)(1) and (2), 265.1033(k) through (n), 265.1034(b) intro, 265.1035(c)(3), 265.1034(c)(9) and (c)(10), 265.1035(d), 265.1050(b) and (e), 265.1055, 265.1058(e), 265.1064(g)(6), 265, Appendix VI.

19. In the entry for Checklist 156, the entry “263.10(e) & (f)” is corrected to read “263.10(f) & (g) ”.

20. In the entry for Checklist 157:

• The citation “262.30(a)-(e)” is corrected to read “268.30(a)-(e) ”.

• The citation “261.69(a)(3)(ii)” is corrected to read “261.6(a)(3)(ii) ”.

21. In the entry for Checklist 163, add 264.15(b)(4), 264.73(b)(6), 264.1030(b)(3), (c) and (d), 264.1031 “in light liquid service”, 264.1033(a)(2)(i) through (iv), 264.1050(b), (c) and (f), 264.1060(a) and (b), 264.1062(b)(2) and (b)(3), 264.1064(g)(6) and (m), 265.15(b)(4), 265.1030(b)(3), 265.1030(d), 265.1033 (a)(2)(i)-(iv), 265.1033(f)(2)(vi)(B), 265.1050(b)(3) and (e), 265.1060(a) and (b), 265.1064(g)(6) and (m), 265, Appendix VI; 270.14(b)(5).

22. In the entry for Checklist 167 E, add 261.3(a)(2)(i), 261.4(b)(7).

23. In the entry for Checklist 168:

• The citation “261.4(a)(16)(iii)” is corrected to read “261.4(a)(16) ”.

• Add 270.42(j), 270.42 Appendix I.

24. In the entry for Checklist 169, add 261.32(a), 261, Appendix VII, 268.35, 268.40/Table.

25. In the entry for Checklist 172, the citation “268.34(b)” is corrected to read “268.34 ”.

26. In the entry for Checklist 174, add 264.90(e) and (f), 264.110(c), 264.112(b)(8), 264.112(c)(2)(iv), 264.118(b)(4) and (d)(2)(iv), 264.140(d), 265.90(f), 265.110(c)&(d), 265.112(b)(8) and (c)(1)(iv), 265.118(c)(4), (c)(5) and (d)(1)(iii), 265.121, 265.140(d), 270.1(c) introductory paragraph.

27. In the entry for Checklist 175:

• Add: 264.1(j) intro and (j)(1), 264.73(b)(17), 264.554 intro and (a) intro, 265.1(b), 265.118(c)(4), 265.118(c)(5), 265.118(d)(1)(iii), 265.121, 265.140(d), 268.2(c), 268.50(g).

• The citation “264.1(j)(4)-(17)” should be corrected to read 264.1(j)(4)-(13).

28. In the entry for Checklist 177: Add 264.1031 “equipment”, 264.1031 “open-ended valve or line”.

29. In the entry for Checklist 179:

• The citation “268.40(e)”' is corrected to read “268.40(i) and (j) ”,

• Add 261.2(c)(3), 261.2(c)/Table I, 261.2(e)(1)(iii), 261.4(b)(7)(iii).

30. Add the following new entry to the Table:

1. In the entry for Checklist 185:

• The citation “261.32(f)/Table” is corrected to read “261.33(f)/Table”.

• Add 261.32(a), 268.48(a)/Table UTS.

2. In the entry for Checklist 190:

• The citation “268.32(b)(i)-(ii)” is corrected to read “268.32(b)(1)(i)-(b)(2)(ii)”.

• Add 268.49(d), 268 Appendix III.

3. In the entry for Checklist 192 B, the citation “Appendix VII/Table” is corrected to read “268 Appendix VII/Table”.

4. In the entry for Checklist 195, add 268.40/Table.

5. In the entry for Checklist 197:

• The citation “266.100(b)(20)(i)-(v)” is corrected to read “266.100(b)(2)(i)-(v)”.

• Add 270.22 intro.

6. In the entry for Checklist 199, add 261.24(a).

7. In the entry for Checklist 203, the citation “279.10(j)” is corrected to read “279.10(i)”.

8. In the entry for Checklist 206, add the following note at the end of the entry: The State's regulations effective March 23, 2006 erroneously omits the changes addressed by the February 24, 2005 final rule. This error is corrected in the State's June 2007 proposed rulemaking (APC&E Commission Docket #07-007-R).

9. In the entry for Checklist 207, the citation “264.71(e)” is corrected to read “264.71(f)”.

10. Add the following new entries to the Table:

11. Add the following text immediately after the Table:

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

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

The EPA incorporated by reference Arkansas' then authorized hazardous waste program effective December 13, 1993 (58 FR 52674) and August 21, 1995 (60 FR 32112). In this action, EPA is revising subpart E of 40 CFR part 272 to include the recent authorization revision actions effective June 24, 2002 (67 FR 20038), and October 15, 2007 (72 FR 45663).

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

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

The EPA is incorporating by reference the Arkansas authorized hazardous waste program in subpart E of 40 CFR part 272. Section 272.201 incorporates by reference Arkansas' authorized hazardous waste statutes and regulations. Section 272.201 also references the statutory provisions (including procedural and enforcement provisions) which provide the legal basis for the State's implementation of the hazardous waste management program, the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are approved as part of the hazardous waste management program under Subtitle C of RCRA.

The EPA retains its authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013, and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in authorized States. With respect to these actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than any authorized State analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Arkansas procedural and enforcement authorities. Section 272.201(c)(2) of 40 CFR lists the statutory and regulatory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.

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

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

(2) Unauthorized amendments to authorized State provisions; and

(3) New unauthorized State requirements.

State provisions that are “broader in scope” than the Federal program are not part of the RCRA authorized program and EPA will not enforce them. Therefore, they are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.201(c)(3) lists the Arkansas regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. “Broader in scope” provisions cannot be enforced by EPA; the State, however, may enforce such provisions under State law.

Additionally, Arkansas' hazardous waste regulations include amendments which have not been authorized by the EPA. Since the EPA cannot enforce a State's requirements which have not been reviewed and authorized in accordance with RCRA section 3006 and 40 CFR part 271, it is important to be precise in delineating the scope of a State's authorized hazardous waste program. Regulatory provisions that have not been authorized by the EPA include amendments to previously authorized State regulations as well as new State requirements. State regulations that are not incorporated by reference in today's rule at 40 CFR 272.201(c)(1), or that are not listed in 40 CFR 272.201(c)(3) (“broader in scope”), are considered new unauthorized State requirements. These requirements are not Federally enforceable.

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

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

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

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

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore, this action is not subject to review by OMB. This rule authorizes and incorporates by reference Arkansas' authorized hazardous waste management regulations, and imposes no additional requirements beyond those imposed by State law. This final rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Incorporation by reference will not impose any new burdens on small entities. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule merely authorizes and incorporates by reference certain existing State hazardous waste management program requirements which the EPA already approves under 40 CFR part 271, and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

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

This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply Distribution or Use” (66 FR 28344, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), the EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply.

The final rule does not include environmental justice issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994). The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective August 27, 2010.

A. What is codification?

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

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

Oklahoma initially received Final authorization effective January 10, 1985 (49 FR 50362), to implement its Base Hazardous Waste Management program. Subsequently, the EPA approved additional program revision applications effective on June 18, 1990 (55 FR 14280), November 27, 1990 (55 FR 39274), June 3, 1991 (56 FR 13411), November 19, 1991 (56 FR 47675), November 29, 1993 (58 FR 50854), December 21, 1994 (59 FR 51116), April 27, 1995 (60 FR 2699), March 14, 1997 (62 FR 12100), July 14, 1998 (63 FR 23673), November 23, 1998 (63 FR 50528), February 8, 1999 (63 FR 67800), March 30, 2000 (65 FR 16528), July 10, 2000 (65 FR 29981), March 5, 2001 (66 FR 28), and February 4, 2009 (74 FR 6010). The EPA incorporated by reference Oklahoma's then-authorized hazardous waste program effective December 13, 1993 (58 FR 52679), July 14, 1998 (63 FR 23673), October 25, 1999 (64 FR 46567), and October 27, 2003 (68 FR 51488). In this document, the EPA is revising Subpart LL of 40 CFR part 272 to include the recent authorization revision actions effective June 9, 2003 (68 FR 17308), and April 6, 2009 (74 FR 5994).

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

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

The EPA is incorporating by reference the Oklahoma authorized hazardous waste program in subpart LL of 40 CFR part 272. Section 272.1851 incorporates by reference Oklahoma's authorized hazardous waste statutes and regulations. Section 272.1851 also references the statutory provisions (including procedural and enforcement provisions) which provide the legal basis for the State's implementation of the hazardous waste management program, the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are approved as part of the hazardous waste management program under Subtitle C of RCRA.

The EPA retains its authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in authorized States. With respect to these actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than any authorized State analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Oklahoma procedural and enforcement authorities. Section 272.1851(c)(2) of 40 CFR lists the statutory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.

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

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

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

State provisions that are “broader in scope” than the Federal program are not part of the RCRA authorized program and the EPA will not enforce them. Therefore, they are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.1851(c)(3) lists the Oklahoma regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. “Broader in scope” provisions cannot be enforced by the EPA; the State, however, may enforce such provisions under State law.

Oklahoma has adopted but is not authorized for the Federal rules published in the Federal Register on October 5, 1990 (55 FR 40834); February 1, 1991 (56 FR 3978); February 13, 1991 (56 FR 5910); April 2, 1991 (56 FR 13406); May 1, 1991 (56 FR 19951); December 23, 1991 (56 FR 66365); June 29, 1995 (60 FR 33912); May 26, 1998 (63 FR 28556); June 14, 2005 (70 FR 34538); August 1, 2005 (70 FR 44150). Therefore, these Federal amendments included in Oklahoma's adoption by reference at 252:205-3-2(b) through 252:205-3-2(m) of the Oklahoma Administrative Code, are not part of the State's authorized program and are not part of the incorporation by reference addressed by this Federal Register document.

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective August 27, 2010.

This is a correction to the Order FCC 08-209 that was published in the Federal Register on January 29, 2009. Accordingly, this correcting amendment corrects the final regulations by revising the language in § 1.1113 (c) as indicated below.

Pursuant to FRA's direct final rulemaking procedures set forth at 49 CFR 211.33, FRA first published the State Highway-Rail Grade Crossing Action Plans as a direct final rule in the Federal Register on September 2, 2009 (74 FR 45336). FRA received one adverse comment regarding the direct final rule. Pursuant to 49 CFR 211.33(d), FRA withdrew the direct final rule and issued a notice of withdrawal to the Federal Register . However, due to regulatory production schedules and time constraints, the direct final rule was not withdrawn before its effective date. As a result, on November 13, 2009, FRA published a removal of the direct final rule provisions in the Federal Register , which removed the changes effected by the direct final rule, and contemporaneously published a notice of proposed rulemaking (NPRM).

Subsequent to the publication of the NPRM, FRA received written requests for a public hearing. FRA held a public hearing in Washington, DC on February 22, 2010, and extended the comment period for an additional fourteen (14) days following the hearing, up to and including March 8, 2010. The hearing enabled the exchange of information regarding FRA's proposed amendments, and allowed the public to articulate their issues and concerns regarding the NPRM. FRA received oral and written testimony at the hearing as well as written comments during the extended comment period. A copy of the hearing transcript was placed in Docket No. FRA-2009-0032, which is available at http://www.regulations.gov.

When developing this final rule, FRA carefully considered all of the comments, information, data, and proposals submitted to Docket No. FRA-2009-0032 and discussed during the hearing. In addition, FRA's extensive knowledge and experience was relied upon when developing this final rule. FRA addresses the comments in the section-by-section analysis and elsewhere as appropriate.

This final rule is intended to comply with section 202 of the Rail Safety Improvement Act of 2008 (RSIA08), Public Law 110-432, Division A, which was signed into law on October 16, 2008. Section 202 requires the Secretary (delegated to the Federal Railroad Administrator by 49 CFR 1.49) to identify the ten States that have had the most highway-rail grade crossing collisions, on average, over the past three years, and to require those States to develop State highway-rail grade crossing action plans, within a reasonable period of time, as determined by the Secretary. Section 202 further provides that these plans must identify specific solutions for improving safety at crossings, including highway-rail grade crossing closures or grade separations, and must focus on crossings that have experienced multiple accidents or are at high risk for such accidents.

FRA received a number of comments of a personal nature about highway-rail grade crossing safety. FRA greatly appreciates the time, effort, and commitment of the persons who submitted these comments. FRA understands that it can be very difficult to share these personal events. FRA considers these comments, along with all of the other comments it receives. These comments are an important and positive contribution to the discussion of highway-rail grade crossing safety.

As discussed, Congress expressly directed FRA to identify the ten States that have had the most highway-rail grade crossing collisions, on average, over the past three years. FRA maintains a database of highway-rail grade crossing accidents/incidents occurring at public and private grade crossings, as such events must be reported to FRA pursuant to 49 CFR 225.19. From this database, FRA identified the ten States with the most reported highway-rail grade crossing accidents/incidents at public and private grade crossings during 2006, 2007, and 2008, to be, as follows: Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio, and Texas. FRA will issue letters to these identified States and copies of such letters will be placed in the public docket of this proceeding.

Comments to the NPRM stated that the methodology used to identify the States did not account for the rate or frequency of highway-rail grade crossings and motor vehicle traffic, and that a more appropriate measure for determining highway-rail grade crossing collisions within a State would be to measure the number of collisions relative to the number of vehicles and the number of highway-rail grade crossings, as well as consideration of the actions already taken by that State that have directly resulted in the reduction of highway-rail grade crossing collisions. The final rule does not adopt these suggestions because the statute expressly directed FRA to use the particular methodology articulated in the final rule (i.e., to identify the ten States that have had the most highway-rail grade crossing collisions, on average, over the past three years). See RSIA08 section 202(a).

Another comment stated that the criteria for selecting the States should be limited to reported highway-rail grade crossing collisions at public crossings. However, again, the statute directed FRA to identify the ten States that have had the most highway-rail grade crossing collisions, and, as such, did not limit the criteria to only public crossings. See Id.

Section 202 of RSIA08 instructs FRA to determine a reasonable period of time within which the ten identified States must develop a State highway-rail grade crossing action plan and the period of time to be covered by such a plan. Based on previous experience working with States on highway-rail grade crossing action plans, FRA has determined that States can reasonably develop such plans within one year from the date this regulation goes into effect, and that such plans should cover a period of five years. A five-year period is appropriate because many of the remedial actions that may be included in these plans (e.g., closures and grade separations) may take up to five years to implement. In addition, any identified State that has already developed an action plan in conjunction with a recommendation from DOT's Office of Inspector General must ensure compliance with this final rule and must resubmit the plan as required.

FRA is available, including FRA regional grade crossing managers and FRA experts from the grade crossing and trespasser prevention division, to provide assistance to States in developing and carrying out, as appropriate, the State highway-rail grade crossing action plans. FRA's Safetydata Web site ( http://www.safetydata.fra.dot.gov ) also contains detailed data that may be of use in the development of the plans. In addition, the State highway-rail grade crossing action plans may be coordinated with other State or Federal planning requirements. For example, States may want to coordinate such plans with their Strategic Highway Safety Plans that are required by SAFETEA-LU, as appropriate.

A comment stated that the NPRM was redundant with the States' obligation to prepare a Highway Safety Improvement Plan, and would result in a burdensome duplication of efforts. As discussed, this rulemaking is required by statute. See RSIA08 section 202. In addition, as noted above, States may coordinate their action plans with their Strategic Highway Safety Plans.

Section 202 of RSIA08 also empowers FRA to condition the awarding of any grants under 49 U.S.C. 20158, 20167, or 22501, to an identified State under this section on the development of such State's plan. Although FRA does not anticipate employing this authority, FRA reserves its right to pursue such a course of action in the event that an identified State fails to comply with this final rule.

A comment to the NPRM stated that FRA had limited its enforcement authority by “excusing” it's authority to condition certain grants to States based on their compliance with the plan requirements. However, FRA believes that the final rule adequately conveys that FRA may condition the awarding of grants under 49 U.S.C. 20158, 20167, or 22501, to an identified State on the development of such State's plan, and does not diminish FRA's enforcement authority.

This section contains the scope provisions related to this part. An amendment to this paragraph includes reference to § 234.11, State Highway-Rail Grade Crossing Action Plans, as being within this part's scope.

A comment to the NPRM asserts that this rulemaking should not be included in part 234 of Title 49 of the Code of Federal Regulations, and that, instead, should be included in a separate part. FRA believes that it is perfectly appropriate to include the provisions contained in this final rule in part 234 and finds the assertion without merit. Thus, FRA adopts the provision as proposed.

This section outlines the application of this part. The amendment to this paragraph excepts § 234.11, State Highway-Rail Grade Crossing Action Plans, from the specific applicability provisions contained in this section. A comment to the NPRM requested that FRA provide guidance or otherwise clarify whether two particular rail systems were exempt from the requirements of part 234. This rulemaking, however, is not the appropriate setting to make jurisdiction determinations regarding particular rail systems. Such jurisdiction determinations are more appropriately handled through direct contact with FRA's Office of Chief Counsel.

The final rule removes this section from part 234. Although FRA proposed amending this section in the NPRM, FRA now believes that this section is unnecessary because 49 U.S.C. 20106 sufficiently addresses the preemptive effect of FRA's regulations. Providing a separate Federal regulatory provision concerning the regulation's preemptive effect is duplicative and unnecessary. Consequently, FRA believes that it is not necessary to address the comments submitted regarding this section of the NPRM.

These section details the civil and criminal penalties that a person may be subject to when violating the requirements of this part. The amendments to this section provide that a violation of § 234.11, State Highway-Rail Grade Crossing Action Plans, will not give rise to either a civil or criminal penalty. In addition, a technical amendment is made to the criminal penalty section. Specifically, the citation to section 209(e) of the Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 438(e)) is removed and replaced with a citation to 49 U.S.C. 21311(a).

Paragraph (a) of this section explains that the purpose of this section is to reduce collisions at highway-rail grade crossings in the ten identified States that have had the most highway-rail grade crossing collisions, on average, over the past three years. This paragraph makes clear that this regulation does not restrict any other State, or other entity, from adopting a highway-rail grade crossing action plan, nor does it restrict any of the identified States from adopting a plan with additional or more stringent requirements not inconsistent with this regulation.

Paragraph (b) of this section makes clear that this section applies to the ten States with the most highway-rail grade crossing collisions, on average, during the calendar years 2006, 2007, and 2008.

Paragraph (c) of this section requires each of the ten identified States to develop a State highway-rail grade crossing action plan and to submit such plans to FRA for review and approval not later than one year after the date this regulation goes into effect. This paragraph also details the specific requirements of the State highway-rail grade crossing action plans. This paragraph requires that such plans shall: identify specific solutions for improving safety at crossings, including highway-rail grade crossing closures or grade separations; focus on crossings that have experienced multiple accidents or are at high risk for such accidents; and cover a five-year period.

Paragraph (d) of this section identifies the FRA contact information to which the identified States must direct the highway-rail grade crossing action plans for review and approval and details the process for handling such plans. This paragraph makes clear that FRA will review and approve or disapprove a State highway-rail grade crossing action plan within 60 days of receiving the plan. This paragraph further states that, if the proposed State highway-rail grade crossing action plan is disapproved, FRA will notify the affected State as to the specific areas in which the proposed plan is deficient, and the State will have to correct all deficiencies within 30 days following receipt of written notice from FRA. Lastly, this paragraph states that FRA may condition the awarding of any grants under 49 U.S.C. 20158, 20167, or 22501 to an identified State on the development of an FRA approved State highway-rail grade crossing action plan.

FRA received a number of comments about the State highway-rail grade crossing action plans proposed in the NPRM.

One comment requested that, in the event a submitted State action plan is disapproved by FRA, the notice of disapproval articulate the action plan's deficiencies and recommend corrections. FRA intends, in the disapproval notice, to provide sufficient information to enable a State to successfully correct its plan.

Another comment stated that the NPRM did not address how proposed action plans were to be evaluated by FRA, and what standards would be applicable, including the applicable engineering criteria. As an initial matter, the State action plans are planning documents and, as such, it was not necessary to develop specific engineering criteria. FRA will evaluate the action plans to ensure that the specific statutory requirements, as articulated in this final rule, are met. FRA expects that, at a minimum, identified States will analyze highway-rail grade crossing collision data for commonalities that may indicate particular areas that need improvements. For example, one State that voluntarily prepared an action plan found that most multiple-collision crossings were in close proximity to a highway-highway intersection. Further investigation determined that there was a general lack of knowledge on interconnecting highway traffic signals with automatic warning devices at highway-rail grade crossings (which subsequently led the State to provide training on the interconnection). That State's plan then provided specific items that should be considered when evaluating such crossings.

Another comment sought clarification on whether the action plans should provide specific safety solutions for specific highway-rail grade crossings, or whether the plans should provide specific safety solutions for highway-rail grade crossings more broadly. A similar comment stated that the NPRM did not contain any criteria for determining how many highway-rail grade crossings should be addressed in the action plans, and whether any engineering criteria should be applied in selecting specific crossings for inclusion in the action plans. To clarify, the final rule is intended to require the identified States to develop action plans that identify specific safety solutions for highway-rail grade crossings broadly. With that said, the rule also requires the States to focus on crossings that have experienced multiple accidents or are at high risk for such accidents. As such, a component of the action plans may include safety solutions for specific highway-rail grade crossings.

A comment also asserted that the NPRM departed from prior Federal-State relationships regarding highway-rail grade crossings. However, as discussed above, this rulemaking was promulgated pursuant to a statutory mandate. See RSIA08 section 202.

Another comment to the NPRM claimed that highway-rail grade crossing safety could be increased by modifying 23 U.S.C. 130 to allow for more flexibility in the use of Federal dollars for consolidation crossing efforts. A similar comment emphasized the importance of retaining a dedicated funding source for highway-rail grade crossing improvements. Other comments stated that Federal funds should be taken from highway-rail grade crossing education efforts, such as Operation Lifesaver, and redirected to implementing safety improvements in highway-rail grade crossings in the identified States. FRA understands that increased Federal funding may facilitate the closure of redundant crossings and otherwise improve highway-rail grade crossings; however, this issue is outside the scope of this rulemaking and the involved statutory mandate.

Several comments also asserted that the NPRM was an unfunded mandate that would burden the identified States and penalize their citizens, and that railroads, instead of the identified States, should plan and implement safety improvements to highway-rail grade crossings. Another comment claimed that the independent preparation of the action plans is not an efficient use of the States' resources and that, instead, the States should collaborate with each other and review best practices for effective safety programs. However, as previously discussed, a statute expressly directed FRA to promulgate this rulemaking and, specifically, to identify ten States, and to impose certain requirements on those States. See RSIA08 section 202. Moreover, States may work with each other, along with FRA staff, to further facilitate the process. Comments also noted that requiring only ten States to put forth such plans, with each State having varying levels of expertise and creating individualized plans, would result in a rule that would be neither national nor uniform. However, again, FRA promulgated this rule pursuant to a specific statutory mandate. See Id. Moreover, there is no requirement that States have uniform highway-rail grade crossing safety action plans as each State may have different issues to address.

A comment to the NPRM also suggested that the final rule provide that the State action plans be protected from subpoenas and Freedom of Information Act (FOIA) requests. The final rule does not adopt this suggestion. FRA has articulated a process for requesting confidential treatment of documents provided to FRA in connection with its enforcement of statutes or FRA regulations related to railroad safety. See 49 CFR 209.11. Moreover, the statute requiring the action plans does not provide for such a confidentiality provision. See RSIA08 section 202.

A comment also asserted that the identified States do not generally have the required expertise to prepare the required action plans. Again, FRA promulgated this rule pursuant to a statutory mandate. See Id. In addition, FRA believes that the identified States will be able to successfully develop these plans. Furthermore, FRA is available, including FRA regional grade crossing managers and FRA experts from the grade crossing and trespasser prevention division, to provide assistance to States in developing and carrying out, as appropriate, the State highway-rail grade crossing action plans.

Comments also stated that the NPRM should not only focus on two safety solutions for highway-rail grade crossings. These comments suggested that there are other safety solutions, in addition to crossing closure and grade separation solutions discussed in the NPRM, and that grade separation is expensive and not viable for most circumstances. The final rule, however, makes reference to the crossing closure and grade separation solutions because the statute mandated that the plans address highway-rail grade crossing closures or grade separations. See RSIA08 section 202(a). Moreover, the final rule does not prohibit the plans from also addressing other viable safety solutions.

One comment asserted that the NPRM did not provide any specific requirements for the State action plans, and suggested that engineering evaluations of the safety issues in the identified States be required. As an initial matter, the final rule does provide specific requirements for the action plans, including that they: identify specific solutions for improving safety at crossings (including highway-rail grade crossing closures or grade separations), and focus on crossings that have experienced multiple accidents or are at high risk for such accidents. These requirements, moreover, do not prohibit the identified States from performing engineering evaluations. In fact, an action plan may identify a specific problem that will require engineering evaluations to be performed at highway-rail grade crossings that meet certain criteria.

Other comments recommended that the action plans should: encourage States to address obstructed motorist sight lines at highway-rail grade crossings; incorporate the American Association of State Highway and Transportation Officials (AASHTO) line of sight parameters; and include on-the-ground assessments of grade crossings. As an initial matter, this final rule does not prohibit the identified States from addressing motorist sight lines, or other safety approaches, in their action plans. Moreover, the final rule relies on the ability of the identified States to identify problem areas and to develop strategies to mitigate such problems. And, as discussed, those specific strategies may be included in an action plan.

A comment also suggested that the identified States should not rely on historic data, in trying to improve crossing safety. The NPRM, however, did not discuss the States' use of historic data, beyond noting in the preamble that the development of such plans would enhance these States' ability to interpret historical accident information, among many other things. Another comment contended that the NPRM was inadequate because it did not constitute a long-term plan, was a one-time effort to address safety problems at highway-rail grade crossings, and did not impose any implementation requirements, or any requirements for periodically updating the action plans. As discussed above, this rule was promulgated pursuant to a specific statutory mandate. See RSIA08 § 202. FRA believes that the final rule is faithful to the statutory requirements. In addition, the final rule does not prohibit the identified States from making the action plans permanent, with periodic updates.

Several comments to the NPRM sought new highway-rail grade crossing regulations and made more general suggestions regarding improving crossing safety. For example, one comment suggested the promulgation of a uniform Federal safety standard of active warning devices for highway-rail grade crossings. Another comment submitted draft legislation addressing highway-rail grade crossing safety. And, one other comment stated that it is essential to prepare draft uniform highway-rail grade crossing safety standards that incorporate Department of Transportation publications, industry studies, and AASHTO publications. Finally, one comment stated that: There needs to be widespread installation of crossing gates and lights; there needs to be more research of, and improvements to, crossing safety devices; and any minimum standard of safety must not stifle the incentives for continuing improvement in both technology and application. FRA appreciates this dialogue regarding the improvement of highway-rail grade crossing safety; however, all of these comments seek actions that are beyond the scope of this rulemaking.

A comment also stated that the identified States should develop an inventory of all highway-rail grade crossings in order to identify and address the most dangerous crossings. FRA appreciates the suggestion, but again notes that this specific request is beyond the scope of this rulemaking. FRA also notes that States and railroads are required to provide annual updates to the U.S. DOT Crossing Inventory, and that such information is available to the States. In addition, most States currently have their own crossing inventory databases. Another comment to the NPRM stated that FRA should use FRA's database as a tool for identifying areas of opportunity, instead of burdening the identified States with these responsibilities. Still another comment to the NPRM asserted that FRA should assign this responsibility to the railroads as well as the identified State's Department of Transportation, in a collaborative effort to improve the safety of highway-rail grade crossings. As previously discussed, this rulemaking is mandated by statute. See RSIA08 section 202. In addition, the U.S. DOT Crossing Inventory is available to the States, and most States have their own crossing inventory databases. Moreover, FRA staff will be available to the States to help facilitate this process.

There were several comments that were more general in nature. One comment asserted that the highest priority of any requirement in the design and operation of any highway facility should be safety. With respect to highway-rail grade crossings, the subject of this rulemaking, FRA believes safety improvement is critical, and this general concept is reflected in the final rule. Another comment claimed that the NPRM did not appear to have been prepared by a person with engineering expertise in highway-rail grade crossing safety, and that the NPRM's objective was “political.” FRA strongly disagrees with this characterization. This final rule is being promulgated pursuant to specific requirements articulated by a Congressionally enacted statute, and FRA believes the final rule is faithful to those requirements. Lastly, one comment stated that the NPRM should not restrict locomotive engineers. FRA does not believe that the final rule imposes any further restrictions on locomotive engineers.

This discussion represents the regulatory impact analysis (RIA). There is not a separate RIA for inclusion in the public docket. This final rule has been evaluated in accordance with existing policies and procedures, and has been determined not to be significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; Feb. 26, 1979). The ten States identified for compliance with the development of the State highway-rail grade crossing action plans are Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio, and Texas. These ten States will incur the burden associated with implementation of this final rule. The estimated total quantified compliance cost for these ten States is approximately $259,000 over the next year. The benefits resulting from the prevention of collisions at highway-rail grade crossings are expected to exceed the burden of developing the action plans. This analysis includes a quantitative burden measurement and a qualitative benefit discussion for this final rule.

The primary burden imposed will be for State labor resources spent to comply with the development of the mandated action plans. FRA estimates that, on the average, each State will assign the plan development responsibilities to a team composed of a program manager, a project engineer, a budget analyst, a business specialist, and a legal expert. Table A lists the aggregate salary estimates and man-year allocations for the entire mandated population.

The final rule requires that FRA review and approve each submitted plan consistent with the statutory mandate. FRA anticipates that the average review time for each of the initial submissions will be 6 hours per plan. Table B lists the aggregated Federal burden associated with the review and approval of the required plans.

To summarize quantitatively, the State burden that will be imposed by this final rule was derived from the estimated sum of the original burden submission from the ten identified States and the burden resubmission from the quantum that may not comply during the initial submission. FRA considers $259,000 to represent the aggregated State burden for the one year period of this requirement. Listed in Table C is the aggregated burden summary.

The development of State highway-rail grade crossing action plans will likely result in a reduction in highway-rail grade crossing safety collisions. Development of such plans will enhance these States' ability to view their population of grade crossings, interpret historical accident information, evaluate the overall state of highway-rail grade crossing safety, and identify particular areas in need of attention. Any patterns of collisions or causal factors will become more readily apparent as a result of the detailed study, assessment, and status reporting involved in the development of the State action plan. In these plans, each State will identify specific solutions for improving safety at individual crossings, including crossing closures or grade separations, with special focus on those crossings that are found to have experienced multiple accidents or that show a heightened risk for accidents. Identification of high risk corridors may also occur as a result of the analysis component of the State action plan. As each State's highway-rail grade crossing action plan may be coordinated with other State or Federal planning requirements, additional benefits may be obtained through closer integration of grade crossing safety issues into the overall State transportation safety planning efforts.

During the three-year time period, 2006 through 2008, the ten States with the most grade crossing collisions, as currently reported, accounted for 51 percent, or almost 4,200 accidents, of all grade crossing collisions nationwide. Highway vehicle damage accounted for more than $28.5 million during this three-year time period, and a combined total of 546 lives were lost. Economic research indicates that $6.0 million per statistical life saved is a reasonable estimate of people's willingness to pay for transportation safety improvements. Therefore, FRA estimates an accumulated $3.28 billion to represent the statistical value of the lives lost as a result of grade crossing collisions in these ten States. Finally, there were 1,666 injuries over the same three-year time period in these ten States. Assuming very conservatively, for purposes of this analysis, that these injuries were all minor in nature ( e.g., injuries that may not require professional medical treatment and where recovery is usually rapid and complete) and thus assigning a cost of $12,000 per injury (i.e., 0.2% of the value of a statistical life), injury costs for this three-year period totaled close to $20 million. Thus, the cost to society of the average incident in the three-year time period was $796,000. Prevention of just one such incident would more than exceed the cost of implementing this rule. FRA believes that it is reasonable to expect that such an incident may be prevented by the implementation of this rule. In addition to the safety benefits, other potential benefits will include: Increased train and highway traffic mobility by reducing collisions, fewer demands on emergency services to respond to crossing collisions, and some improvement in air quality by reducing emissions from vehicles that are unable to move due to crossing collisions.

The findings of this analysis are sensitive to its assumptions. The burden estimates are largely driven by the composition of the State's team and the level of effort expended by each individual. Such factors may vary from team to team. FRA realizes that the level of expertise per State, per team, per member, will vary and, therefore, has applied a 20 percent sensitivity factor above and below the baseline as follows:

In commenting on FRA's RIA of the NPRM, one commenter contended that the action plans should be prepared by licensed professional engineers practicing in the transportation area with expertise in grade crossing design, operations, and safety. Although it may be necessary to use such an engineer to implement aspects of an action plan, FRA believes that the development of the actions plans do not require the direction of such engineers. Another commenter questioned the identified States ability to develop action plans under the NPRM's time and cost parameters, and suggested that the States will develop general plans proposing “one-size-fits-all” solutions. As discussed previously, FRA believes that the identified States will be able to successfully develop these plans in the allotted timeframe. Furthermore, FRA is available, including FRA regional grade crossing managers and FRA experts from the grade crossing and trespasser prevention division, to provide assistance to States in developing and carrying out, as appropriate, the State highway-rail grade crossing action plans. In addition, FRA believes that each identified State will develop an action plan tailored to address that State's particular safety issues. One commenter also questioned FRA's estimate of the cost of preparing the actions plans and stated that the estimate of $26,000 per State was an under-valuation. As described above, the time and cost parameters represent an aggregation of information and estimates obtained from a sample of the States as to their own individual estimates necessary to comply with the provisions of the final rule. In addition, the estimated cost per State of approximately $26,000 is an average composed of estimated costs significantly larger and smaller.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and Executive Order 13272 require a review of proposed and final rules to assess their impact on small entities. An agency must prepare a final regulatory analysis, unless it determines and certifies that the rule would not have a significant economic impact on a substantial number of small entities.

“Small entity” is defined in 5 U.S.C. 601. Section 601(3) defines a “small entity” as having the same meaning as “small business concern” under § 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Section 601(4) includes not-for-profit enterprises that are independently owned and operated, and are not dominant in their field of operations within the definition of “small entities.” Additionally, § 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.

The U.S. Small Business Administration (SBA) stipulates “size standards” for small entities. It provides that the largest a for-profit railroad business firm may be (and still classify as a “small entity”) is 1,500 employees for “Line-Haul Operating” railroads, and 500 employees for “Short-Line Operating” railroads. 1

SBA size standards may be altered by Federal agencies in consultation with SBA, and in conjunction with public comment. Pursuant to the authority provided to it by SBA, FRA has published a final policy, which formally establishes small entities as railroads that meet the line haulage revenue requirements of a Class III railroad. 2 Currently, the revenue requirements are $20 million or less in annual operating revenue, adjusted annually for inflation. The $20 million limit (adjusted annually for inflation) is based on the Surface Transportation Board's threshold of a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment. 3

This rule would apply to States—none of which is small as defined above. Thus, pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), FRA certifies that this rule will not have a significant economic impact on a substantial number of small entities, as it only affects ten identified States.

The information collection requirements in this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The section that contains the new information collection requirements is noted below, and the estimated burden times to fulfill each requirement are as follows:

All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan at 202-493-6292 or Ms. Kimberly Toone at 202-493-6132 or via e-mail at the following addresses: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.

Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be sent via e-mail to the Office of Management and Budget at the following address: oira_submissions@omb.eop.gov.

OMB is required to make a decision concerning the collection of information requirements contained in this direct final rule between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.

FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of this final rule. The OMB control number, when assigned, will be announced by separate notice in the Federal Register .

FRA has evaluated this final rule in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this final rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. 64 FR 28545, 28547, May 26, 1999. In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this final rule that might trigger the need for a more detailed environmental review. As a result, FRA finds that this final rule is not a major Federal action significantly affecting the quality of the human environment.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, “Federalism” (64 FR 43255, Aug. 4, 1999), which requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.

FRA has determined that this final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, nor on the distribution of power and responsibilities among various levels of government. In addition, FRA has determined that this final rule will not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of E.O. 13132 do not apply.

Although this final rule removes the preemption section of part 234, FRA notes that this part could have preemptive effect by the operation of law under the FRSA. 49 U.S.C. 20106. Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “essentially local safety or security hazard” exception to § 20106.

This final rule also amends FRA's regulations by adding a provision for State highway-rail grade crossing action plans. This provision expressly provides that it does not restrict any State, not identified by the final rule, or other entity, from adopting a highway-rail grade crossing action plan, nor does it restrict any of the identified States from developing action plans with additional or more stringent requirements that are not inconsistent with this final rule.

In sum, FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132, and has determined that preparation of a federalism summary impact statement for this final rule is not required.

Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $141,300,000 or more in any one year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. This final rule will not result in the expenditure, in the aggregate, of $141,300,000 or more in any one year, and thus preparation of such a statement is not required.

Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the Federal Register ) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking that: (1)(i) Is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this final rule in accordance with Executive Order 13211. FRA has determined that this final rule will not have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this regulatory action is not a “significant energy action” within the meaning of Executive Order 13211.

Interested parties should be aware that anyone is able to search the electronic form of all comments received into any agency docket 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.

Framework 21 was developed and adopted by the Council in order to meet the FMP's objectives to prevent overfishing and improve yield-per-recruit from the fishery. The FMP requires biennial adjustments to ensure that the measures meet the fishing mortality rate (F) and other goals of the FMP and achieve optimum yield (OY) from the scallop resource on a continuing basis. Framework 21 measures will replace those that were specified for the March 1, 2010, start of the fishing year (FY). Framework 21 specifies measures only for FY 2010. Amendment 15 to the FMP, currently under development by the Council, will identify and implement annual catch limits and accountability measures to bring the FMP into compliance with the new requirements of the re-authorized Magnuson-Stevens Fishery Conservation and Management Act (MSA) for FY 2011 and beyond. Framework 22 will be developed by the Council to set the specifications for FYs 2011 and 2012.

The Council approved Framework 21 at its November 18, 2009, meeting and submitted Framework 21 to NMFS for review on December 21, 2009. At its November 2009 meeting, the Council focused on two F target alternatives that did not involve a new access area closure: A target F of 0.24 (TAC of 47.3 M lb), and a lower target F of 0.20 (TAC of 41.5 M lb), which was ultimately selected by the Council. The Council's quota allocation recommendation for FY 2010 became very controversial due to industry concerns over the FY 2010 economic impacts of what some believed to be an overly precautionary F target. Following public testimony from both scallop and groundfish fishery participants who supported adoption of a higher allocation alternative, and an in-depth review of the two alternatives, the Council amended its previous Framework 21 decision and voted to adopt the higher F target of 0.24 for FY 2010 at its January 27, 2010, meeting. The Council's rationale for the amended decision was primarily based on the fact that the Framework 21 allocation alternatives were analyzed using a revised landings-per-unit effort (LPUE) calculation applied to the DAS model that would likely be more reflective of actual fishing effort than the DAS model used in Framework 19 to the FMP. Framework 19's LPUE model had underestimated fishing effort in open areas in FYs 2008 and 2009, resulting in higher levels of harvest than projected. The adjusted LPUE used in Framework 21 increased, resulting in lower overall DAS allocations that take into account higher effort levels. After an extensive discussion of the aggregate impacts of the revised LPUE calculation, in addition to setting a lower F target, the Council determined that the higher F target (0.24), in addition to the revised DAS model, would better achieve OY while also being appropriately precautionary. The Council subsequently revised its recommendations for action in Framework 21 and resubmitted the document with updated analyses reflecting the higher F target allocation to NMFS for review on March 19, 2010.

The Council reviewed the Framework 21 proposed rule regulations as drafted by NMFS, which included regulations proposed by NMFS under the authority of section 305(d) of the MSA, and on March 30, 2010, deemed them to be necessary and consistent with section 303(c) of the MSA. The proposed rule for Framework 21 published in the Federal Register on April 27, 2010, with a 15-day public comment period that ended May 12, 2010. Three comments were received on the proposed measures.

The IFQ Program was implemented on March 1, 2010. As a result, limited access scallop vessels, limited access scallop vessels with LAGC IFQ permits, and LAGC IFQ vessels will receive 94.5 percent, 0.5 percent, and 5 percent of the allocated target TAC, respectively, after accounting for applicable research and observer set-asides.

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

The Council's Scientific and Statistical Committee (SSC) recommended an ABC for the 2010 scallop fishery based on an F of 0.284, which results in a TAC of 57,803,000 lb (26,219 mt) after accounting for discards and incidental mortality. The calculation on which this ABC recommendation is based assumes that mortality in the scallop fishery is spatially and temporarily uniform, and that all exploitable scallop biomass is accessible to the fleet. However, due to various rotational and permanent closures, as well as area-based differences in F, the PDT developed and analyzed allocation alternatives with various F targets below 0.284 in order to prevent localized overfishing in areas that are accessible to the fleet. Based on these analyses, and in order to minimize adverse impacts on Essential Fish Habitat (EFH), minimize bycatch, and achieve OY to the extent practicable, the Council ultimately based the target TAC on an F of 0.24. This results in a TAC of 47,278,000 lb (21,445 mt).

After the deduction of the incidental target TAC (50,000 lb, 22.7 mt) allocated to vessels with LAGC incidental permits, the remaining TAC is 47,228,000 lb (21,422 mt). This TAC is allocated into several components: Open area DAS; individual access area trips for limited access vessels; IFQ allocations, including access area allocations, to vessels with LAGC IFQ permits; and research and observer set-asides.

This action implements the following vessel-specific DAS allocations for FY 2010: Full-time vessels will be allocated 38 DAS; part-time vessels will be allocated 15 DAS; and occasional vessels will be allocated 3 DAS.

Because Framework 21 was not implemented by the start of the FY on March 1, 2010, and the regulations in effect at the start of FY 2010 are inconsistent with Framework 21 specifications, it is possible that a scallop vessel may have exceeded its DAS allocation during the interim period between March 1, 2010, and the effective date of this final rule. Therefore, any limited access open area DAS used in FY 2010 by a vessel that is above the final FY 2010 allocation for that vessel will be deducted from the vessel's FY 2011 DAS allocation.

Under the Northeast Multispecies FMP, 10 percent of the Southern New England (SNE) YTF TAC is allocated to scallop vessels fishing in the Nantucket Lightship Access Area (NLAA). For FY 2010, this equates to 47 mt; 103,617 lb (April 9, 2010; 75 FR 18356). If the NLAA YTF TAC is caught, the NLAA will be closed to further scallop fishing for the remainder of the FY. If a vessel has unutilized trip(s) after the access area is closed due to reaching the YTF TAC, it will be allocated additional open area DAS at a reduced rate. This trip/DAS conversion will apply only to full-time vessels, and to occasional or part-time vessels that have no other available access areas in which to take their access area trip(s). Full-time vessels will be allocated 5.8 DAS per unutilized trip in the NLAA. If part-time and occasional vessels have no available access areas in which to take an unused trip, they will be allocated 4.6 DAS and 1.9 DAS, respectively.

If a vessel has unused compensation trip(s) from a previously broken trip(s) when the access area closes due to reaching the YTF TAC, it will be issued additional DAS in proportion to the unharvested possession limit. For example, if a full-time vessel had an unused 9,000-lb (4,082-kg) NLAA compensation trip (half of the full possession limit) at the time of a NLAA YTF TAC closure, the vessel will be allocated 2.9 DAS (half of the 5.8 DAS that will be allocated for a full NLAA trip).

In FY 2010, full-time scallop vessels are allocated one trip in the NLAA, two trips in the Elephant Trunk Access Area (ETAA), and one trip in the Delmarva Access Area (Delmarva). A part-time scallop vessel is allocated two trips, which can be taken as follows: two trips in the ETAA; one trip in the ETAA and one trip in the NLAA; one trip in the ETAA and one trip in Delmarva; or one trip in NLAA and one trip in Delmarva. An occasional vessel is allocated one trip, which can be taken in any one open access area. The FY 2010 limited access scallop possession limit for access area trips is 18,000 lb (8,165 kg) for full-time vessels, 14,400 lb (6,532 kg) for part-time vessels, and 6,000 lb (2,723 kg) for occasional vessels.

Because Framework 21 was not implemented by the start of the FY on March 1, 2010, and the regulations in effect at the start of FY 2010 are inconsistent with Framework 21 specifications, it is possible that scallop vessels could exceed their ETAA access area trip allocation during the interim period between March 1, 2010, and the effective date of this final rule. There were three ETAA trips allocated for full-time scallop vessels at the start of FY 2010, but this final rule allocates only two trips. If a full-time vessel takes three trips into the ETAA during FY 2010, the vessel's FY 2011 overall access area trip allocation will be reduced by one trip to account for the FY 2010 overage. The access area trip allocations for FY 2011 are not yet determined; vessel owners who exceed their ETAA trip allocations for FY 2010 will have their overage deducted from their ETAA allocation, if there is a trip allocated into the ETAA for FY 2011. If no ETAA trips are allocated in FY 2011, vessel owners will be given the opportunity to select the area from which their trip overage would be deducted, with NMFS determining the area, if the vessel owner fails to respond.

Framework 21 reduces the access area possession limit for part-time and occasional vessels. Therefore, it is also possible that a part-time or occasional vessel may have exceeded its trip possession limit during the interim period between March 1, 2010, and the effective date of this final rule. If a part-time or occasional vessel exceeds its FY 2010 possession limit, the overage will be deducted from that vessel's FY 2011 possession limit allocation.

1. TAC for LAGC vessels with IFQ permits. This action specifies a 2,326,700-lb (1,055-mt) annual TAC for LAGC vessels with IFQ permits for FY 2010. IFQ allocations will be calculated by applying each vessel's IFQ contribution percentage to this TAC.

2. TAC for Limited Access Scallop Vessels with IFQ Permits. This action specifies a 232,670-lb (106-mt) annual TAC for limited access scallop vessels with IFQ permits for FY 2010. IFQ allocations will be calculated by applying each vessel's IFQ contribution percentage to this TAC.

3. LAGC IFQ Trip Allocations and Possession Limits for Scallop Access Areas. The LAGC IFQ fishery is allocated 5 percent of the overall ETAA, NLAA, and Delmarva TACs, resulting in a fleet-wide trip allocation of 1,377 trips in the ETAA and 714 trips in both the NLAA and in Delmarva. These areas will close to LAGC vessels when the Regional Administrator determines that the allocated number of trips have been taken in the respective areas.

Framework 21 reduces the number of LAGC trips into the ETAA and Delmarva. Therefore, it is possible that LAGC scallop vessels could exceed the FY 2010 fleet-wide trip allocations in the ETAA and Delmarva. If LAGC vessels exceed the number of allocated trips from the ETAA or Delmarva in FY 2010, the number of excess trips will be deducted from the LAGC IFQ fleet access area trip allocation in FY 2011 in the ETAA or Delmarva, respectively.

4. Northern Gulf of Maine (NGOM) TACS. This action specifies a 70,000-lb (31,751-kg) annual NGOM TAC for FY 2010.

5. Scallop Incidental Catch Target TAC. This action specifies a 50,000-lb (22,680-kg) scallop incidental catch target TAC for FY 2010 to account for mortality from this component of the fishery and to ensure that F targets are not exceeded.

Two percent of each scallop access area quota and 2 percent of the DAS allocation are set aside as the Scallop RSA to fund scallop research and to compensate participating vessels through the sale of scallops harvested under RSA quota. The FY 2010 RSA access area allocations are: NLAA—117,820 lb (53 mt); ETAA—227,060 lb (103 mt); and Delmarva—117,700 lb (53 mt). The FY 2010 RSA DAS allocation is 269 DAS.

One percent of each scallop access area quota and 1 percent of the DAS allocation are set aside as part of the industry-funded observer program to help defray the cost of carrying an observer. Scallop vessels on an observed DAS trip are charged a reduced DAS rate, and scallop vessels on an observed access area trip are authorized to have an increased possession limit. Unless changed by the Regional Administrator, the current compensation rate for FY 2010 will continue, as follows: Limited access DAS vessels carrying an observer on access area trips will receive 180 lb (82 kg) of scallops per day, or part of a day, in ETAA, Delmarva, and NLAA; LAGC IFQ vessels carrying an observer on access area trips will receive 180 lb (82 kg) of scallops per trip in ETAA, Delmarva, and NLAA; and limited access DAS vessels will be compensated 0.10 DAS per DAS fished during observed open area trips ( i.e., vessels will be charged 0.90 DAS per DAS fished with an observer onboard). The Regional Administrator will re-evaluate the compensation rates for FY 2010 should new information regarding monitoring and coverage levels indicate the need for adjustment. The 2010 observer set-aside access area allocations are: NLAA—58,910 lb (27 mt); ETAA—113,530 lb (52 mt); and Delmarva—58,850 lb (27 mt). The FY 2010 DAS observer set-aside allocation is 135 DAS.

The Incidental Take Statement of the March 14, 2008, Biological Opinion required NMFS to implement five non-discretionary reasonable and prudent measures (RPMs) identified as necessary or appropriate to minimize the impacts of any incidental take, as well as Terms and Conditions for implementing each RPM. Framework 21 includes management measures to comply with the first of these RPMs, which requires a limit of fishing effort in the Mid-Atlantic during times when sea turtle distribution is expected to overlap with scallop fishing activity. The Biological Opinion requires that this restriction on fishing effort must be in place no later than FY 2010 and shall be limited to a level that will not result in more than a minor impact on the fishery.

For FY 2010, Framework 21 defined a “more than minor impact” on the fishery as one that would result in a 10-percent shift in baseline effort from the Mid-Atlantic during June 15 through October 31 into other areas and times of year when sea turtle interactions are less likely. This definition, as well as management measures to comply with the Biological Opinion and any future Biological Opinions, will be reevaluated for future FYs in Framework 22 and subsequent actions.

This action will close the Delmarva access area from September 1, 2010, through October 31, 2010. In addition, because the ETAA and Delmarva are in the Mid-Atlantic, full-time limited access vessels will be restricted to taking two of the access area trips allocated to those areas, or to maximum landings of 36,000 lb (16,329 kg) from those areas ( i.e., the equivalent of two access area trips), during the period June 15, 2010, through August 31, 2010. Compliance with the trip restriction will be monitored by pounds of scallops landed during June 15, 2010, through August 31, 2010, rather than trip declarations, which could result in landings that are less than the allowable trip possession limit. The additional pounds allocated to vessels with on-board observers during trips taken within this time period will not count towards this 36,000-lb (16,329-kg) limit. If a vessel fishes any part of an access area trip in the ETAA or Delmarva during this time period ( i.e., starts a trip on June 13, 2010, and ends the trip on June 15, 2010), landings from that trip would count towards the two-trip limit.

In addition, compensation trips may not be combined during this time period in a way that would allow more than 36,000 lb (16,329 kg) to be landed from the ETAA or Delmarva from June 15, 2010, through August 31, 2010. For example, this final rule allocates three total trips into the Mid-Atlantic access areas to a full-time vessel for FY 2010 (One trip in Delmarva; two trips in the ETAA). If that vessel declared and subsequently broke one of the three trips into Mid-Atlantic access areas prior to June 15, it would have two full trips ( i.e., 36,000 lb, 16,329 kg) available for use during the trip-restriction window. In that case, the vessel could only harvest up to 36,000 lb (16,329 kg) total from June 15, 2010, through August 31, 2010, in the Mid-Atlantic access areas, either by fishing its compensation trip and one full access area trip or by fishing two full access area trips and waiting to conduct the compensation trip on or after November 1, 2010 ( i.e., after the ETAA and Delmarva seasonal closures).

Part-time and occasional vessels are not affected by this trip restriction because they are not allocated more than two trips during the entire FY. LAGC IFQ vessels are also not affected by this trip restriction.

The following measures were developed by the Council to improve the administration of the industry-funded observer program.

1. Limit the amount of observer compensation LAGC IFQ vessels can possess per observed trip in access areas. This action requires that for access area trips declared after the effective date of this action, the possession limit to defray the cost of an observer for LAGC IFQ vessels fishing in access areas be specified by trip, not by fishing day. For example, if the limited access vessel daily possession limit to defray the cost of an observer is 180 lb (82 kg), the LAGC IFQ possession limit will be 180 lb (82 kg) per observed trip. In this scenario, an LAGC IFQ vessel with an onboard observer will be able to land up to 580 lb (263 kg), the sum of its regular possession limit of 400 lb (181 kg) plus the additional observer compensation, during an access area trip, regardless of trip length. The intent of this measure is to avoid allocating observer compensation in excess of the amount necessary to pay for the observer costs for these trips in order to minimize the possibility of fully harvesting the observer set-aside in an access area prior to the end of the FY.

2. Providers must charge a prorated fee for vessels fishing in access areas if the observer set-aside has been fully harvested. This action requires that, for observed access area trips declared after NMFS announces that the annual observer set-aside for a given access area is fully exhausted, service providers must prorate their fees on an hourly basis for the remainder of the FY, similar to how observer fees are charged for vessels fishing on open area scallop trips. The intent of this measure is avoid observer fees charged in excess of actual time spent on an observed trip in an access area once the set-aside allocated to that specific access area is no longer available to defray observer costs.

This final rule will enable the owner of an IFQ vessel or IFQ confirmation of permit history (CPH) to lease some or all of its IFQ to or from and other IFQ vessel during a single FY. This measure removes the restriction that requires leasing only of an entire IFQ. This alternative only applies to leases, and not to permanent transfers, which will still require a vessel's entire IFQ allocation to be transferred permanently. Vessel owners intending to lease some or all of their IFQ allocation to another IFQ vessel(s) may not fish any of their IFQ allocation prior to the lease transaction.

This action requires partial IFQ leases to be at least 100 lb (45 kg). If a vessel owner has previously leased a portion of the vessel's IFQ, and the remaining allocation is less than 100 lb (45 kg), the remaining IFQ may be transferred in full to another vessel.

This action also revises regulatory text to remove or clarify text that was duplicative and unnecessary, outdated, or unclear.

Three comment letters were received in response to the proposed rule from an individual; the Fisheries Survival Fund (FSF), writing on behalf of full-time limited access scallop fleet members; and Oceana, an environmental organization. The comments relating to the proposed Framework 21 measures are responded to below. Other comments, including those raising specific concerns about the contents and development of the March 14, 2008, Biological Opinion for the sea scallop fishery, are not the subject of this rulemaking and are therefore not responded to in this document. The FSF stated in its comment letter that it intended to incorporate by reference other comments made during the Council's development of Framework 21; NMFS notes that the rulemaking process does not recognize such non-specific incorporation by reference. As a general matter, NMFS is constrained to only approve, disapprove, or partially approve measures in Framework 21, and cannot substantively amend or add to these regulations beyond what is necessary under section 305(d) of the MSA to discharge its responsibility to carry out such measures.

Comment 1: The FSF noted that it disagrees with the requirements of the Biological Opinion, characterizing them as ultraconservative, but reluctantly accepted the measures specified to comply with the RPM in the Biological Opinion. The FSF noted that, while the measures meet the criteria of having no more than a minor impact on the fishery, they will have negative economic impacts on the scallop industry because they will divert fishing activity to sub-optimal times of the year, when scallop yields are lower. However, FSF recognized that the findings of the Biological Opinion impose legal duties on NMFS that must be addressed through Framework 21, and that the scallop fleet will have to bear the costs of the measures.

Response: NMFS recognizes that FSF has concerns about the Biological Opinion that are not directly related to this rulemaking. NMFS agrees that the Framework 21 analysis shows that there will be some economic losses as a result of the diversion of fishing from the Mid-Atlantic region during a productive fishing period into areas and times with lower scallop yields. As FSF notes, however, the analysis concluded that the measures would comply with the RPM specified in the Biological Opinion, and have no more than a minor impact on the fishery, as required by the Endangered Species Act (ESA).

Comment 2: Oceana contended that Framework 21 fails to protect threatened and endangered sea turtles, fails to protect habitat, fails to reduce bycatch of sea turtles and finfish, and fails to achieve OY of scallops. Oceana suggests that NMFS should disapprove the use of the F=0.24 target and should approve and implement the measures developed by the Council to be consistent with the F=0.20 target. Oceana suggested that NMFS should disapprove Framework 21 and return the document to the Council for revision.

Response: Additional specific concerns noted by Oceana are characterized further and responded to in subsequent comments. NMFS disagrees with Oceana's suggestion that Framework 21 should be disapproved. NMFS has found that the measures in Framework 21 comply with the MSA, ESA, NEPA, and all other applicable laws. Oceana's comments are based largely on the comparison of the impacts of the management alternatives considered by the Council. These alternatives included measures that would have achieved the F=0.24 and F=0.20 targets. There is no legal requirement when such alternatives are considered to necessarily select the more restrictive alternative for implementation. The analysis in Framework 21 demonstrates that the F=0.24 target is not expected to result in overfishing and would achieve OY on a continuing basis, fully in compliance with MSA and the FMP. The F=0.24 target is approximately 80 percent of the F=0.284 overfishing threshold, and is consistent with the overfishing definition in the FMP. Framework 21 complies with NEPA, as it clearly presents the purpose and need for Framework 21, includes all necessary components of a NEPA document, fully analyzes and compares the impacts of a well-developed range of alternatives, and makes conclusions directly based on the information and analyses.

NMFS notes that a disapproval of Framework 21 would mean that the current management program would continue in effect. While the overall TAC is slightly higher in Framework 21 than the status quo, it is distributed to the fishery in a way that results in fewer open area DAS and access area trips. This, in turn, represents a reduction of the amount of the sea bottom where fishing occurs (overall swept area), with associated reductions in bycatch and habitat impacts. Failing to enact the measures in Framework 21 at this time would mean that there would be no measures to reduce interactions with sea turtles, as specified in the Biological Opinion.

Comment 3: Oceana's comments about ESA requirements include concerns that there should be a reintiation of consultation on this fishery and that the current Biological Opinion for the scallop fishery must be updated because new information is available concerning loggerhead sea turtles as reflected in a status review and by a proposed listing of the North Atlantic distinct population segment as endangered. Although Oceana stops short of advocating disapproval of Framework 21 while a reintiation occurs, it recommends that NFMS should implement the F=0.20 alternative originally adopted by the Council and that there should be specific management measures that would apply to both the open area and access areas in the Mid-Atlantic region. Oceana objects to the fact that the DAS allocated in Framework 21 are higher than those that would have been allocated if the target F was 0.20. Because the measures proposed in Framework 21 are applicable only to the access areas, Oceana contends that the measures do not comply with the requirements of the Biological Opinion.

Response: NMFS has determined that the measures in Framework 21 comply with the requirements of the MSA, the ESA and, specifically, the current Biological Opinion, even in light of the new status review and proposed listing. As a preliminary matter, NMFS is constrained from implementing the F=0.20 alternative or any new sea turtle measures under the MSA because it can only approve, disapprove, or partially approve measures included in a framework adjustment. NMFS does not believe that the 2009 loggerhead sea turtle status review or proposed listing is cause to reinitiate ESA Section 7 consultation on the Atlantic sea scallop fishery. The status review did not focus on the scallop fishery or Framework 21, and therefore there is no new information provided in the status review specifically regarding the exposure of loggerhead sea turtles to scallop fishing gear. The status review provides no new information regarding risk from Framework 21 or the scallop fishery to loggerhead sea turtles. The status review states that the decline of loggerhead sea turtles in the Northwest Atlantic is largely driven by mortality due to bycatch throughout the North Atlantic Ocean; however, these bycatch mortalities are from multiple fisheries operating under the jurisdiction of multiple countries, not just the U.S. Atlantic sea scallop fishery. The Population Viability Analysis conducted for the 2008 Biological Opinion, which specifically examined the effects of the scallop fishery on sea turtles in the North Atlantic, found that the mortality caused by the scallop fishery did not significantly alter the risk of extinction or quasi-extinction of loggerheads in the North Atlantic. The status review used the same nesting beach abundance data as the March 14, 2008, Biological Opinion, and the two documents identify the same key nesting beach and oceanic threats to survival and recovery of the species. Both documents utilized similar modeling techniques, and used the same nesting data. Because the status review's modeling exercise relied on essentially the same information that was used in the Biological Opinion, the status review does not provide new information that indicates effects of Framework 21 or the scallop fishery on loggerhead sea turtles, in a manner or to an extent not considered in the 2008 Biological Opinion. The comments made by Oceana related to the loggerhead sea turtle status review also presume the outcome of the agency process relating to making a future listing decision. If NMFS and the U.S. Fish and Wildlife Service (FWS) do make a final listing decision to list the Northwest Atlantic Distinct Population Segment of loggerhead sea turtles (as described in the status review and the proposed rule published on March 16, 2010 (75 FR 12597)), then reinitiation of consultation will be required. However, without such a final listing decision, NMFS does not consider the triggers for reinitiation of consultation to have been met. The publication of the status review in and of itself does not meet the triggers for reinitiation and, thus, by logical extension, there are no grounds for adjusting the RPMs or enacting any other restrictive measures relating to sea turtle protection.

NMFS has found that Framework 21 complies with the requirements of the RPM, and also meets the ESA criteria of having no more than minor impact on the fishery. Framework 21 includes measures to assure compliance with RPM #1 of the March 14, 2008 (amended February 5, 2009) Biological Opinion. This RPM stated that “NMFS must limit the amount of allocated scallop fishing effort by `limited access scallop vessels' as such vessels are defined in the regulations (50 CFR 648.2), that can be used in the area and during the time of year when sea turtle distribution overlaps with scallop fishing activity.” The non-discretionary Term and Condition that implements the RPM above mandates that “no later than the 2010 scallop FY, NMFS must limit the amount of allocated limited access scallop fishing effort that can be used in waters south of the northern boundaries of statistical areas 612, 613, 533, 534, 541-543 during the periods in which turtle takes have occurred. Restrictions on fishing effort described above shall be limited to a level that will not result in more than a minor impact on the fishery.” The Council took these requirements into account throughout the development of Framework 21 and considered measures to limit effort in the Mid-Atlantic area from mid-June through the end of October that also would not result in more than a minor impact on the fishery. The measures ranged from limits on DAS or access area trips that could be used in that area and time period, seasonal closures of access areas in the Mid-Atlantic, and reduced possession limits in Mid-Atlantic access areas.

After a number of discussions, the Council decided that Framework 21 measures would include a seasonal closure of the Delmarva access area and a limit on the number of Mid-Atlantic access area trips. The restrictions are intended to remove fishing effort during the time when effort overlaps with sea turtle distribution. The seasonal closure of the Delmarva access area takes place from September 1 through October 31. This measure will remove an estimated 563 DAS from the sea turtle window. Although this measure may increase the DAS needed to land the same amount of pounds of scallops in other areas, this increase in effort will take place in areas and at times of the year when sea turtles are less abundant in the action area. Limiting the number of Mid-Atlantic access area trips that can be taken during times when sea turtles are most abundant will likely benefit sea turtles. Each vessel is restricted to taking two of the three allocated access area trips in the Mid-Atlantic during June 15 to October 31. Since both Mid-Atlantic access areas are now closed from September 1 to October 31 to reduce impacts on sea turtles, the limit is applicable for June 15 through August 31. Limiting the maximum number of trips to two per vessel will move 358 DAS from the sea turtle window to the rest of the year, which constitutes a 3.5-percent effort shift. In summary, the combined measures will result in an 8.9-percent shift of effort from the sea turtle window (June 15-October 31) into the rest of the year, which is slightly below a threshold level suggested by the Scallop PDT (10 percent) for a minor change to the fishery based on the analyses prepared by the Scallop PDT for the RPM in Framework 21. Thus, the measures taken in Framework 21 meet the requirements of the RPM and Term and Condition in the March 14, 2008 (amended February 5, 2009) Biological Opinion in that they shift effort away from times and areas where the fishery and sea turtles overlap, but do not result in more than a minor impact on the fishery.

With respect to compliance with the ESA, NMFS has concluded that the operation of the scallop fishery under Framework 21 measures will not affect endangered and threatened species in a way that has not already been considered and analyzed. Considering all aspects of Framework 21, including the measures to implement the RPM and term and condition from the Biological Opinion and the F=0.24 target, overall fishing effort in the fishery will be reduced compared to that which would occur in the absence of Framework 21 and to that considered in the Biological Opinion. It is significant, also, that Framework 21 is a one-year measure only. The Council and NMFS will need to reconsider the adequacy of sea turtle measures for FYs beyond 2010, and, if there are any changes based on new information or a determination concerning the proposed listing, reintiation would be required and new measures may be appropriate.

Comment 4: Oceana commented that, by allowing fishing levels consistent with the F=0.24 target, Framework 21 fails to minimize bycatch of finfish and adverse effects on EFH. Oceana concluded that the amount of swept area would have been lower under a target F=0.20. This, Oceana concluded, means that Framework 21 does not minimize impacts on adverse impacts to the extent practicable to EFH. Oceana expressed concern that estimates of YTF bycatch are higher under the higher target F, and will likely have impacts on the fledgling sector management program for NE multispecies.

Response: As noted in Response to Comment 2, when the Council compares alternatives, there is no legal requirement to select the most restrictive alternative for implementation. The measures in Framework 21 achieve a variety of objectives, including preventing overfishing and achieving OY of scallops. This action must be put into perspective of the overall FMP, which contains more comprehensive analysis and consideration of bycatch and EFH concerns. This action merely makes adjustments to the FMP on a one-year basis and is limited in scope. In the process of achieving those FMP objectives, the Council and NMFS must only minimize adverse impacts on EFH and minimize bycatch to the extent practicable. The National Standard Guidelines for minimizing EFH impacts and bycatch explicitly acknowledge that social and economic impacts are important considerations in determining the practicablilty of EFH and bycatch reduction measures ( see 50 CFR 600.350(d)(3) and 600.815(a)(2)(iii)). The Council and NMFS are also required to minimize the economic impacts when there are multiple alternatives that may be consistent with conservation objectives. NMFS has concluded that Framework 21 analyzes and balances these objectives and complies with all applicable legal requirements.

Comment 5: The FSF commented that the Framework 21 allocations based on the F=0.24 target are overly precautionary, and that at least one additional access area trip is justified based on levels of scallop abundance. The FSF criticized the Council for not considering an alternative that included an additional access area trip. However, FSF concluded that the recommended specifications are fully within the legal parameters established in the MSA and the National Standard 1 guidelines.

Response: The allocations for access areas and open areas combine to achieve the F=0.24 target. NMFS notes that allocating additional access area trips likely would have reduced open area DAS because of the additional mortality caused by fishing within Closed Area I or Closed Area II.

Comment 6: Oceana commented that Framework 21 establishes a level of fishing at the F=0.24 target that allows localized overfishing of the scallop resource, which is illegal. It further alleges that the Council was swayed by political pressure to select the F=0.24 target in order to reap short-term gains for the scallop fishery in FY 2010. Oceana encouraged NMFS to disapprove the F=0.24 strategy and substitute the more risk-averse and profitable F=0.20 strategy for FY 2010. Oceana commented that the F=0.24 strategy provides only minor short-term economic benefits for the fishery that come at a considerable cost to the ocean ecosystem, in violation of MSA requirements.

Response: The analysis of the impacts of Framework 21 management measures on the scallop resource demonstrate clearly that the F=0.24 target is not expected to result in overfishing and is expected to achieve OY on a continuing basis. The MSA requires overfishing to be prevented on the stock as a whole, and, in fact, the MSA does not define localized overfishing. The area rotation management program established by the FMP presumes that F will vary by area, depending upon the distribution of biomass. The analysis of economic impacts demonstrates that cumulative profits over several years may be marginally higher under the F=0.20 target, but the Council chose to adopt measures with marginally lower cumulative profits because of its concern about the negative economic, community, and social impacts that could have resulted in the first year of the management measures under F=0.20. There was great concern among some members of the public that the future return in landings and revenue under F=0.20 would not outweigh the risk of lost market share that could occur in FY 2010, particularly if a lower quota resulted in a ripple effect throughout the major ports that could potentially affect business and fisheries outside of those directly tied to scallops. Should this occur, businesses currently impacted by the recent economic climate would have a difficult time recovering their losses in the future, regardless of whether the allocations increased after FY 2010. Ultimately, the Council considered that the longer-term benefits do not outweigh these short-term impacts. Although this action will have marginally smaller positive long-term economic impacts in comparison to the F=0.20 alternative, Framework 21 is only addressing the allocations for FY 2010. Future management measures in FY 2011 and beyond will affect these forecasts. NMFS finds that this is fully consistent with the MSA because Framework 21 measures under the F=0.24 alternative prevent overfishing the scallop stock, achieve OY on a continuing basis, and reduce negative impacts on fishing communities.

Comment 7: The FSF suggested that the final rule for Framework 21 clarify how ETAA trips will be addressed in FY 2011 if a vessel exceeds its Framework 21 two-trip allocation by taking three trips prior to the implementation of Framework 21, as allowed.

Response: NMFS has clarified that a vessel will lose one access area trip if it takes more than two trips allocated in the ETAA under Framework 21 prior to the effective date of Framework 21. It is not yet known whether the ETAA will be open as an access area in FY 2011. If the ETAA is open, the deduction would be taken from the FY 2011 ETAA allocation. If the ETAA is not open, vessel owners would be given the opportunity to select the access area from which the overage would be deducted, with NMFS determining the area, if the vessel owner fails to respond. This is consistent with the Framework 21 access area trip provisions described in Section 2.2.3 of the Framework 21 document.

Comment 8: The FSF urged NMFS to recalculate the conversion factor that would be used to convert unused NLAA access area trips into open area DAS if the area is closed due to attainment of the YTF TAC. The FSF believes that the FMP requires the 5.8 DAS given as compensation for an NLAA trip to be increased in order to assure that a vessel with unharvested poundage from the NLAA trip is able to harvest the full amount of 18,000 lb (8,165 kg) of scallops (the amount allocated for a full-time vessel trip into the NLAA).

Response: The FSF has incorrectly characterized the objective of the FMP measure that specifies that unused NLAA trips will be converted to open area DAS. This measure was initially established through Joint Framework 16/39 (69 FR 63460; November 2, 2004), which modified both the Sea Scallop and NE Multispecies FMPs and went into effect in FY 2005. The objective of the measure is not, as FSF states, to assure that vessels should be allocated DAS that are sufficient to fully harvest 18,000 lb (8,165 kg). The measure, which is described in Section 2.5.1.1 of Framework 21, was established to ensure that the transfer of fishing effort from the access area to the open area is conservation neutral. This calculation takes into account the expected average landings per DAS based on relative biomass and scallop size in open areas, compared to the NLAA. Framework 21 calculated that, in the NLAA, based on the F=0.24 target, the average NLAA scallop meat count will be 11.5 meats per lb—therefore 207,000 scallops (18,000 lb * 11.5) would be removed per trip. In the open areas, the average meat count will be 21.2 meats per lb, so that 207,000 scallops per trip correspond to 9,764 lb (4,429 kg) of scallops (207,000 lb/21.2 meats per lb). With an expected landings per unit effort of 1,693 lb (768 kg) per DAS, the open area DAS to harvest 9,764 lb (4,429 kg) is 5.77 DAS (9,764 lb/1,693 lb per DAS).

Comment 9: The FSF commented in support of the regulatory changes related to the industry funded observer program compensation rates for vessels that carry observers. The FSF supports the provision that requires observer service providers to prorate the observer coverage fee if the set aside is exhausted.

Response: The measures have been enacted through this action.

The section heading of § 648.10 is revised to correct an inadvertent change made through a previous action, paragraph (c)(1) is revised to clarify the current Vessel Monitoring System (VMS) regulations, and paragraph (f)(4) is revised to correctly reference the name of the required catch report for NGOM and LAGC vessels.

In § 648.11, paragraph (g)(5)(i)(A) is revised to clarify that observer service providers must charge a prorated fee when issuing an observer to a vessel on an access area trip after NMFS has announced that the observer set-aside for that specific access area has been fully utilized.

In § 648.14, paragraph (i)(4)(i) is revised to clarify that LAGC IFQ vessels may only exceed the possession and landing limit if granted observer compensation while carrying an observer in an access area.

Other editorial and minor changes were made throughout the rule to clarify various provisions in this action.

NMFS has determined that Framework 21 as implemented by this rule is necessary for the conservation and management of the Atlantic sea scallop fishery and is consistent with the MSA and other applicable law.

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

The Assistant Administrator for Fisheries has determined that the need to implement these measures in an expedited manner in order to help achieve conservation objectives for threatened and endangered sea turtles and certain fish stocks constitutes good cause, under authority contained in 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness. Framework 21 includes management measures to minimize fishery interaction with threatened and endangered sea turtles and prevent overfishing. Specifically, Framework 21 includes a measure that specifies that vessels may take only two of their three allocated access area trips in the ETAA and Delmarva between June 15 and August 31, 2010. This limitation complies with one of the RPMs required in the most recent Biological Opinion completed for the scallop fishery. The Biological Opinion examined fishery interactions with threatened and endangered sea turtles and specified RPMs to minimize the impacts on sea turtles. If implementation is delayed greatly beyond June 15, 2010, sea turtle conservation benefits during this short window of time will be compromised.

In addition, if there is a delay in implementing the measures in Framework 21, the scallop fleet will continue under the current DAS, observer set-aside, access area trip allocations, and access area trip possession limits for part-time and occasional vessels. These allocations are higher than the measures specified in Framework 21, which were developed to reflect an updated estimate of the annual catch that can be harvested without resulting in overfishing. As a result, vessel owners and operators have the potential of exceeding the catch levels specified in Framework 21. Further continuation of the inconsistent FY 2009 management measures increases the risk that the actual F will exceed the target level upon which Framework 21 management measures are based. Actual F was higher than projected in both FYs 2008 and 2009, a situation which was addressed in the DAS model used to calculate the Framework 21 allocations. Continuing this trend in higher-than-projected fishing mortality could result in overfishing and future decreases in allowable harvest.

NMFS was unable to incorporate the delay in effectiveness into the timeline for Framework 21 rulemaking due to the Council's January 2010 reconsideration and amendment of its initial Framework 21 recommendations, which were originally submitted to NMFS on December 21, 2009. The Council resubmitted the Framework 21 document with updated analyses to NMFS on March 19, 2010, after the March 1 start of the 2010 scallop FY.

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has completed a final regulatory flexibility analysis (FRFA) in support of Framework 21 in this final rule. The FRFA incorporates the IRFA, a summary of the significant issues raise by the public comments in response to the IRFA, and NMFS's responses to those comments, and a summary of the analyses prepared for Framework 21. This FRFA describes the economic impact that this final rule, along with non-adopted alternatives, will have on small entities. A copy of the IRFA, the RIR, and the EA are available upon request ( see ADDRESSES ).

This action specifies the FY 2010 management measures for the Atlantic sea scallop fishery. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to the proposed and final rules and are not repeated here.

The vessels in the Atlantic sea scallop fishery are all considered small business entities and, therefore, there is no disproportionate impact on small entities. All of the vessels grossed less than $3 M according to dealer data for the FYs 1994 through 2008. According to this information, annual total revenue, including revenue from species other than scallops, has averaged over $1 M per full-time limited access vessel since FY 2004. According to FY 2008 dealer data, total revenue per vessel, including revenue from species other than scallops, averaged $1,079,722 per full-time limited access vessel, and $135,378 per general category vessel.

Framework 21 measures affect all Federal scallop vessels. The Framework 21 document provides extensive information on the number and size of vessels and small businesses that would be affected by these measures, by port and State. In FY 2008 (the most recent complete FY for which data are complete), there were 321 full-time, 34 part-time, and 1 occasional limited access scallop permits issued, and 459 general category permits issued to vessels in the LAGC fishery. Amendment 11 to the FMP established a limited access fishery for general category vessels and the appeals and limited access permit process for the LAGC fleet was completed in January 2010. There are now 329 vessels that qualified for IFQ permits, 40 limited access vessels that qualified for IFQ permits, 107 vessels that qualified for NGOM permits, and 288 vessels that qualified for incidental permits.

One commenter expressed concern about the economic impacts of the measures to comply with the Biological Opinion. The FSF noted that, while the measures meet the criteria of having no more than a minor impact on the fishery, they will have negative economic impacts on the scallop industry because they will divert fishing activity to sub-optimal times of the year, when scallop yields are lower. However, FSF recognized that the findings of the Biological Opinion impose legal duties on NMFS that must be addressed through Framework 21, and that the scallop fleet will have to bear the costs of the measures. No modifications to the proposed rule were made as a result of this comment. As FSF recognized, the Framework 21 analysis concluded that the measures would comply with the RPM specified in the Biological Opinion, and have no more than a minor impact on the fishery, as required by the ESA.

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

The analysis of the fleet-wide aggregate economic impacts indicate that the final DAS allocations will have slightly negative economic impacts on the revenues and profits of the scallop vessels in FY 2010, compared with the No Action alternative and compared to the levels in FYs 2008 and 2009. Because this action will reduce the open area DAS allocations from 42 DAS to 38 DAS for each full-time limited access vessel (with similar reductions, proportionally for part-time and occasional vessels), the total landings will decline by 6 percent in FY 2010, from $50 M under No Action to $47 M under this action, reducing FY 2010 revenues for an average vessel by about 2 percent. In comparison to FYs 2008 and 2009 average, the adopted action will result in a 14-percent decrease in landings, representing a 2.3-percent decrease in revenues. The percentage decline in revenues is less than the percentage decline in landings because the price per pound of scallops is estimated to be higher for the adopted action ($7.27 per lb) compared with No Action ($7.07 per lb), the price in FY 2008 ($6.92 per lb) and the price in FY 2009 ($6.45 per lb).

Although this action will produce slightly less revenue in FY 2010 compared to FYs 2008 and 2009, it will result in higher revenues for full-time limited access vessels from FY 2011 through FY 2016. This was also true of the non-selected alternatives.

Over the short term, from FY 2010 through FY 2016, the action's cumulative revenues are estimated to be slightly lower than the No Action revenues, by $9 M, representing a 0.3-percent decrease. However, the No Action alternative does not prevent overfishing and would result in suboptimal allocation of open area DAS and access area trips. Under the No Action alternative, there is no access into the NLAA, but the biomass in that area can support one trip. In addition, under No Action, open area DAS allocations would be higher than sustainable levels because there is no adjustment to reflect the present conditions of biomass in those areas. For these reasons, the levels of exploitable biomass for the No Action alternative will be less than the levels for this action and all the other alternatives considered. Consequently, No Action would have long-term negative impacts on the scallop stock biomass, landings, revenues, and economic benefits of the scallop fishery. Over the long term (FYs 2010 to 2023), the alternative implemented by this rule will generate $53 M more in total revenues than the No Action alternative.

The non-selected Closure (F=0.20) and Closure (F=0.18) alternatives would allocate higher DAS (51 and 42 DAS, respectively) to full-time vessels than this action and would have had positive economic impacts on scallop vessels in FY 2010. However, these alternatives would have negative biological impacts because the new rotational area closure resulted in a higher area-swept estimate in the Mid-Atlantic open area, which may have impacts on non-target species in those areas and increase the possibility of localized overfishing in open areas. If these negative biological impacts were to occur as a result of the Closure (F=0.18) or Closure (F=0.20) alternatives, more stringent measures would have to be taken in the future to reduce effort, with potentially negative impacts on the scallop vessels. Therefore, these alternatives are not expected to generate higher benefits for the scallop vessels in the long term, compared to this action.

The revenue for an average full-time limited access vessel is estimated to be $931,799 for this action, which ranges from $108,152 to $18,661 lower than the Closure (F=0.18), Closure (F=0.20), and No Action alternatives. However, because this action will allocate fewer open area DAS in FY 2010 compared to these three alternatives, and also will allocate access area trips in more productive areas compared to No Action, the trip costs would be comparatively reduced. The average trip costs per vessel ($111,621) would decline by a range of 20 to 9 percent in comparison to the higher DAS alternatives. The allowance for carry-over DAS is another factor that could mitigate some of the negative impacts of this action on vessel revenues and profits in FY 2010. Vessels may save up to 10 of their open area DAS in FY 2009 to mitigate the slightly smaller FY 2010 DAS allocations compared to No Action, Closure (F=0.18), or Closure (F=0.20) alternatives.

Although the No Closure (F=0.20) alternative would produce the marginally greater benefits over the long term compared to the selected alternatives, it would result in a 13-percent and 11-percent loss in FY 2010 average annual revenue compared to No Action and this action, respectively. This action would result in average FY 2010 revenues that are $109,563 greater than the No Closure (F=0.20) alternative. This action yields 5.8 M lb (2.6 M kg) more in 2010 than the No Closure (F=0.20) alternative, which equates to an increase in $41 M in ex-vessel revenues. In consideration of the FY 2010 economic benefits under this action, the future return in landings and revenue under No Closure (F=0.20), representing an increase in 10.3 M lb (4.7 M kg) and $58 M over FYs 2011-2016, does not outweigh the risk of lost market share that could occur in FY 2010, particularly if a lower quota results in a ripple effect throughout the major ports that could potentially affect business and fisheries outside of those directly tied to scallops. Should this occur, businesses currently impacted by the recent economic climate would have a difficult time recovering their losses in the future, regardless of whether the allocations increased after FY 2010. This action also minimizes impacts on the fishery by helping to stabilize landings from year to year ( i.e., between FY 2009 and FY 2011) compared to other alternatives considered. In addition, although this action will have marginally smaller positive long-term economic impacts in comparison to the No Closure (F=0.20) alternative, Framework 21 is only addressing the allocations for FY 2010. Future management measures in FY 2011 and beyond will affect these forecasts.

Under all alternatives, including No Action, the LAGC fleet is allocated 5 percent of the TAC. This means the relative comparison of this action to the other alternatives is similar to the comparison for the limited access fleet. For example, similar to full-time limited access vessels, the revenues of LAGC vessels are expected to be 2 percent lower under this action than under No Action in FY 2010.

Compared to FYs 2008 and 2009, however, the revenues of LAGC vessels will decline by a larger percentage due to the implementation of the IFQ program, as required by Amendment 11 to the FMP. The total scallop revenue for the general category fishery was estimated to be $30.8 M for FY 2008 and $29.6 M for FY 2009, averaging $30.2 M across both FYs. During FYs 2008 and 2009, the LAGC fishery was under a transition period while the final decisions for IFQ permit appeals were determined. The transition period allocated 10 percent of the TAC to LAGC IFQ vessels, as well as vessels that were granted a letter of authorization to fish for scallops while their IFQ permit applications were under appeal. FY 2010 marks the first year that the IFQ program is in effect, and LAGC IFQ vessels are now allocated 5 percent of the TAC. As a result, revenues for LAGC vessels under this action are projected to be $17 M, representing a 43-percent decline. The short- and long-term economic impacts of allocating 5 percent of the total TAC to LAGC vessels were analyzed in Amendment 11 to the FMP. The economic impacts of the LAGC TAC are within the range of the impacts previously analyzed in Amendment 11.

This action will have positive economic impacts for the LAGC fishery starting in FY 2011, as the LAGC TAC is expected to increase compared to the FY 2010 allocation.

Other Framework 21 measures, such as observer program improvements, IFQ program improvements, NGOM hard TAC, and YTF TAC adjustments are expected to provide additional positive impacts by providing vessels the opportunity to reduce fishing costs and increase revenues from scallop fishing.

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

This action maintains a provision that allocates additional open area DAS if an access area closes due to the attainment of the scallop YTF TAC. This will continue the current measures with the same impacts as the No Action alternative. This conversion will help to minimize lost catch and revenue if the NLAA closes due to the full harvest of the YTF quota. As a result, this measure will have positive economic impacts on scallop vessels, although the scallop pounds per trip could be lower than the allocated pounds for NLAA trips due to proration to assure that the measure is conservation neutral. There were no alternatives considered to address this issue that would generate higher economic benefits for the participants of the scallop fishery.

This action will continue to set aside 2 percent of the scallop TAC for the RSA program and 1 percent of the scallop TAC for the industry-funded observer set-aside program. These set-asides are expected to have indirect economic benefits for the scallop fishery by improving scallop information and data made possible by research and the observer program. Although allocating higher set-aside percentages could result in higher indirect benefits to the scallop fleet by increasing available funds for research and the observer program, these set-aside increases could decrease direct economic benefits to the fishery by reducing revenues, and no such alternatives were considered.

This action will allow access into both ETAA and Delmarva for both the limited access DAS and LAGC fleets. By itself, allocations for these highly productive areas in FY 2010 will have positive economic impacts on both limited access and LAGC vessels. The only alternative that would have generated higher benefits than the proposed action is the No Action alternative, which would have allocated three trips to ETAA, rather than two trips. This number of trips is higher than the projected biomass in that area can support. As a result, the No Action alternative would have had negative impacts on the biomass and yield from the ETAA after FY 2010. As occurred in the Hudson Canyon Access Area in FY 2005, excessive harvest in an access area can lead to rapid, almost immediate, depletion of the area's resource, leading to poor catch rates and elevated fishing costs.

This action will allocate one access area trip into the NLAA. All alternatives considered, with the exception of No Action, included this trip allocation. The biomass in this area is estimated to be high, and trip costs will be lower, because the same amount of scallops could be landed in a shorter time frame compared to areas with lower scallop abundance. Providing access to high abundance areas will help increase yield, landings, and revenues from the fishery both in the short- and long-term, benefiting both limited access and LAGC vessels that participate in the scallop fishery. Because there is no trip allocation to the NLAA area under No Action, economic benefits would have been lower both in the short- and long-term compared to the adopted alternative, and other alternatives considered.

This action establishes a 70,000-lb (31,751-kg) TAC for the NGOM. This is the same TAC as the No Action alternative and all other alternatives. The FMP specifies that the NGOM TAC should be based on historic landings levels until the stock in the NGOM can be assessed formally, and there has been no stock assessment to date. The NGOM TAC has been specified at this level since FY 2008, and the fishery has harvested less than 15 percent of the TAC in each of those years; therefore, the TAC has no negative economic impacts.

This action allows LAGC IFQ vessels owners (or IFQ CPH owners) to lease some or all of their IFQ allocations to other vessels during a given FY. This action will provide increased flexibility for LAGC IFQ vessel owners, who, to date, are required to lease the entirety of their IFQ allocations. This measure will have positive impacts on vessel revenues and profits. The only other alternative was the No Action alternative, which would have required that vessel owners continue to lease unused quota allocations in full.

This action will close the Delmarva access area in September and October and will limit the maximum number of trips (two per full-time vessel) that can be taken in the Mid-Atlantic areas from June 15 to August 31. Because fishing effort is shifted to a relatively less productive season, total fleet trip costs are expected to increase slightly ( i.e., less than 0.2 percent) due to reduced scallop catch rates. Since there is no change in the scallop possession limit, the trips that are shifted from this season are expected to be taken outside of this time period, without a loss in total revenue, as long as this adopted measure does not have a negative impact on prices. The closure in the Delmarva access area from September 1 through October 31 applies to all scallop vessels, including LAGC IFQ vessels. This measure is not expected to affect the LAGC fleet specifically, since the access area trips for this fleet are allocated as a fleet-wide number of trips, and tend to be used outside of the closure period. No other alternatives considered would generate higher benefits for the scallop vessels, other than the No Action alternative. The No Action alternative, however, would not comply with the RPMs specified in the Biological Opinion. This measure is expected to minimize the effort shift from the given time period compared to the other alternatives considered by the Council; thus, there are no other alternatives that would generate higher benefits for the scallop vessels.

This action will limit the total amount of observer compensation LAGC IFQ vessels may receive on observed trips in access areas to the equivalent of 1 day's compensation, regardless of trip length. The No Action alternative would continue to provide LAGC IFQ vessels observer compensation on a daily basis and would generate higher benefits for the scallop vessels while the observer set-aside is available. This, however, may exhaust the set-aside TAC before the end of the FY. The current LAGC IFQ access area observer compensation contributed to fully harvesting the FY 2009 observer set-aside earlier than anticipated. This had negative impacts fleet-wide because vessels had to provide full payment to observers without available observer compensation after the observer set-aside was exhausted. These negative impacts were not equally distributed across the fleet.

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