In August 2009, the Department of State amended the ITAR to provide an exemption for the temporary export of body armor covered by 22 CFR 121.1, Category X(a)(1). Now, the Department is amending the ITAR to add an exemption for the temporary export of chemical agent protective gear covered by 22 CFR 121.1, Category XIV(f)(4). The exemption is available for U.S. persons for temporary exports to countries not subject to restrictions under ITAR § 126.1, and to countries subject to restrictions under ITAR § 126.1 under specified conditions. In order to use the exemption, the chemical agent protective gear must be for the U.S. person's exclusive use and must be returned to the United States. The U.S. person may not reexport the protective gear to a foreign person or otherwise transfer ownership. The protective gear may not be exported to any country where the importation would be in violation of that country's laws.

New § 123.17(j) specifies that if the chemical agent protective gear is not returned to the United States with the individual that temporarily exported the gear, a detailed report of the incident must be submitted to the Office of Defense Trade Controls Compliance in accordance with the requirements of ITAR § 127.12(c)(2). If the chemical agent protective gear is lost or stolen, the report should describe all attempts to locate the gear and explain the circumstances leading to its loss or theft. In the event the chemical agent protective gear is used and disposed of according to HAZMAT guidelines, the report should provide a disposal date and location details for the approved HAZMAT facility used, along with a receipt for disposal services. If a HAZMAT facility is not available, the report should describe the date, location, and method used to dispose of the protective gear. In the proposed rule, this disclosure provision was covered in paragraph (f) and applied only to the body armor and chemical agent protective gear provisions. In this final rule, we specify that, in addition to applying to the body armor and chemical agent protective gear exemptions, it also applies to the firearms exemption covered in paragraph (c).

The change removes the requirement that assistance to the government of Iraq be “humanitarian” to more accurately match the language of United Nations Security Council restrictions, which do not limit assistance to humanitarian assistance.

New § 123.17(k) clarifies that individuals who are U.S. persons seeking to use the exemptions of § 123.17 are not required to be registered with the Department of State (the registration requirement is described in ITAR part 122).

Section (c)(3) is revised to remove what is in practice extraneous language. Subject to the requirements of (c)(1)-(3), the exemption applies to all eligible individuals (with the noted exceptions). Thus, while the text is revised, the meaning of (c)(3) is not changed.

The authority citation for ITAR part 126 is corrected to include sections 7045 and 7046 of Public Law 112-74.

This rule was first published as a proposed rule on March 23, 2011, soliciting public comment. The comment period ended May 23, 2011. Seven parties filed comments recommending changes. The Department's evaluation of the written comments and recommendations follows:

Three commenting parties requested the elimination of the requirement for a U.S. Customs and Border Protection (CBP) inspection before export, citing logistical difficulties in certain instances (for example, departing on a U.S. military airplane from a U.S. military base). According to law and regulations, persons who claim this exemption must submit the articles for CBP inspection at departure, regardless of the type of aircraft used for departure from the United States. Therefore, the Department did not accept this recommendation.

Three commenting parties requested clarification of the phrase, “affiliated with the U.S. Government,” or recommended it be replaced with “travelling in support of a U.S. Government contract.” Because the first phrase includes those employed by the U.S. Government, and is meant to include those who are described by the second phrase, the Department has kept the first phrase and amended the regulation to include the second phrase.

Two commenting parties recommended the option of separate shipment or mailing of armor or gear exported using this exemption, stating that carrying the armor or gear is burdensome. We acknowledge that carrying the armor or gear may present certain logistical difficulties, but because this exemption is intentionally of limited scope, we are not prepared to authorize separate shipment or mailing as a mean of export at this time. Therefore, the Department did not accept this recommendation.

Two commenting parties inquired into what type of documentation may be used to satisfy the exemption requirements for Iraq. As the rule is written, various forms of documentation may be presented to fulfill the exemption requirements, including the examples proffered by the commenting parties (contract with or letter from the U.S. Government).

One commenting party recommended including specific mention of the C2 canister as covered by the chemical agent protective gear exemption. Upon reflection, the Department determined that the exemption would be more useful if it provided for coverage of a spare filter canister (of which the C2 canister is one variant). Therefore, the Department in effect accepted this recommendation, although it opted for use of the more generic term of “filter canister” rather than “C2 canister.”

One commenting party recommended the removal of the requirement to submit a report to the Office of Defense Trade Controls Compliance in accordance with the requirements of § 127.12(c)(2) should the person temporarily exporting under this exemption not be able to return the exported items. The commenting party said it would be “wrong” to treat as a violation an instance where the impediment to return was the actual intended use and destruction of the body armor or chemical agent protective gear. The Department notes when an item authorized only for temporary export is not returned to the United States, by definition it is a violation. Section 127.12(c)(2) is the means by which such a violation is reported to the Department. The Department did not accept this recommendation.

One commenting party recommended broadening this exemption for use by U.S. persons, as defined at ITAR § 120.14. The Department clarifies that the exemption is for use by U.S. persons, as defined at ITAR § 120.14.

One commenting party recommended the removal of the requirement to file the export declaration through the Automated Export System (AES), with the explanation that AES is not available for individual use. The Department verified that AES is available for individual use. Therefore, the Department did not accept this recommendation.

One commenting party recommended expanding the exemption to allow a U.S. person to export and distribute to employees the items covered by the exemption. While a company within the definition of “U.S. person” may claim the exemption for his employees, the individual employees must export the items and these items must be with the individual's baggage or effects, whether accompanied or unaccompanied (but not mailed).

One commenting party recommended allowing the use of this exemption for temporary export to proscribed destinations listed in ITAR § 126.1, when the person using the exemption is travelling on official business in support of a U.S. government contract. The Department agreed with the rationale that this modification to the proposed rule would “allow for the timely support of U.S. Government contracts in hazardous areas of foreign countries where such protective gear is required for personal safety.” Therefore, the Department accepted this recommendation.

One commenting party recommended eliminating the requirement in paragraph (f)(3) for the individual to declare to CBP his intention of returning the articles upon each return to the United States, stating that it is common practice for persons to safely store their gear overseas when returning home for short visits. The Department accepted this recommendation, and has revised paragraph (f)(3) to require the person to declare that it is his intention to return the articles “at the end of tour, contract, or assignment for which the articles were temporarily exported.”

One commenting party recommended providing the option of depositing the body armor or chemical agent protective gear with a U.S. Government depot and receiving a receipt in lieu of physical return of the articles to the United States, and another commenting party inquired whether this was permissible under the exemption. In order to avoid the requirement of obtaining a license from the Department for the export, the articles temporarily exported under this exemption must be physically returned to the United States. Therefore, the Department did not accept this recommendation.

One commenting party recommended including helmets in the body armor exemption, noting that helmets are frequently added to a suit of armor, and that it “makes good sense” to include in the same exemption that covers items that protect a person's body an item that protects a person's head. The Department agreed with this recommendation, and has added helmets covered by 22 CFR 121.1, Category X(a)(6) to the exemption for the temporary export of body armor, when the helmet is included with the body armor. The exemption is not available for the helmet alone.

Having thoroughly reviewed and evaluated the comments and the recommended changes, the Department has determined that it will, and hereby does, adopt the proposed rule, with changes noted and other edits, and promulgates it as a final rule.

The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from § 553 (Rulemaking) and § 554 (Adjudications) of the Administrative Procedure Act. Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department published this rule with a 60-day provision for public comment and without prejudice to its determination that restricting defense article exports is a foreign affairs function.

Since the Department is of the opinion that this rule is exempt from the rulemaking provisions of 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

This amendment does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 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.

The Department has determined that this rule 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 Executive Order 13175 do not apply to his rule.

This amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

This amendment 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 Executive Order 13132, it is determined that this amendment 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 amendment.

The Department is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules governing the conduct of this function are exempt from the requirements of Executive Order 12866. However, the Department has reviewed the rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Order.

The Department of State has considered this rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein.

The Department of State has reviewed this amendment in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. chapter 35.

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, parts 123 and 126 are amended as follows:

On August 30, 2011, the National Labor Relations Board published a final rule requiring employers subject to the National Labor Relations Act (NLRA) to post notices informing their employees of their rights as employees under the NLRA. The Board later changed the effective date of the rule from November 14, 2011, to January 31, 2012, and then to April 30, 2012. On April 13, 2012, the District Court for South Carolina held, contrary to the District Court for the District of Columbia, that the Board lacked authority to issue the rule. On April 17, 2012, the D.C. Circuit temporarily enjoined the rule in light of conflicting decisions at the district court level. Accordingly, the effective date of the rule is delayed until further notice.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Iowa program effective April 10, 1981. You can find background information on the Iowa program, including the Secretary's findings, the disposition of comments, and the conditions of approval, in the January 21, 1981, Federal Register (46 FR 5885). You can also find later actions concerning the Iowa program and program amendments at 30 CFR 915.10, 915.15, and 915.16.

By letter dated August 25, 2011 (Administrative Record No. IA-451), Iowa sent us an amendment to its Program under SMCRA (30 U.S.C. 1201 et seq. ). Iowa sent the amendment in response to a September 30, 2009, letter we sent to Iowa in accordance with 30 CFR 732.17(c), concerning multiple changes to ownership and control requirements (Administrative Record No. IA-450.1). Iowa proposed to revise its regulatory program by updating its adoption by reference of applicable portions of 30 CFR 700 to End from the July 1, 2002, version to the July 1, 2010, version.

We announced receipt of the proposed amendment in the October 17, 2011, Federal Register (76 FR 64043). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on November 16, 2011. We did not receive any public comments.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment, as described below. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes.

Iowa updated its adoption by reference of applicable sections of 30 CFR 700 to End from those in effect as of July 1, 2002, to those in effect as of July 1, 2010. Iowa also revised dates and added citations in its ownership and control requirement sections listed in the table below.

We find that Iowa's revised regulations adopted by reference are no less effective than the corresponding Federal regulations, and we are approving them.

We asked for public comments on the amendment, but did not receive any.

On August 31, 2011, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendments from various Federal agencies with an actual or potential interest in the Iowa program (Administrative Record No. IA-451.1). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Iowa proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, by letter dated August 31, 2011, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. IA-451.1). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. By letter dated August 31, 2011, we requested comments on the amendment (Administrative Record No. IA-451.1), but neither responded to our request.

Based on the above findings, we approve the amendment Iowa sent us on August 25, 2011.

To implement this decision, we are amending the Federal regulations at 30 CFR part 915, which codify decisions concerning the Iowa program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10) decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Iowa program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Iowa program has no effect on Federally-recognized Indian tribes.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior certifies that this rule 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

For the reasons set out in the preamble, 30 CFR part 915 is amended as set forth below:

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Oklahoma program on January 19, 1981. You can find background information on the Oklahoma program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Oklahoma program in the January 19, 1981, Federal Register (46 FR 4902). You can also find later actions concerning the Oklahoma program and program amendments at 30 CFR 936.10, 936.15, and 936.16.

By letter dated February 25, 2011 (Administrative Record No. OK-1000), Oklahoma sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.). Oklahoma submitted its proposed amendment at its own initiative. Oklahoma proposed revisions to the Oklahoma Administrative Code at sections 460:20-43-14(b)(7) and 460:20-45-14(b)(7) concerning size limitations on permanent impoundments, 460:20-43-38(1) concerning approximate original contour, 460:20-43-47(c)(3) and 460:20-45-47(c)(6) concerning subsidence reporting, and 460:20-17-4(b)(2)(C) concerning requirements for bond calculation at renewal.

We announced receipt of the proposed amendment in the April 27, 2011, Federal Register (76 FR 23522). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on May 27, 2011. We did not receive any public comments.

During our review of the amendment, we identified concerns regarding the proposed revisions to Oklahoma Administrative Code 460:20-43-14(b)(7) and 460:20-45-14(b)(7) concerning size limitations on permanent impoundments, as well as 460:20-43-38(1) concerning approximate original contour. We notified Oklahoma of these concerns by letter dated October 21, 2011 (Administrative Record No. OK-1000.04). By letter, dated November 18, 2011 (Administrative Record No. OK-1000.06), Oklahoma responded and withdrew these sections regarding impoundments and approximate original contour from the proposed amendment and requested that we process the sections regarding subsidence reporting and bond calculation.

We are approving the amendment as described below. The following are the findings we made concerning the amendments under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17.

Oklahoma's regulations require the operator to comply with all provisions of the approved subsidence control plan. The proposed addition would require the operator to report to the Department of Mines all instances of alleged subsidence within 30 calendar days. The report must be in writing. The report must identify the location of the alleged subsidence in relation to the underground mine workings.

The Federal regulations, at 30 CFR 784.20(b)(4), provide for subsidence monitoring to determine what measures may be taken to prevent, reduce, or correct material damage. This new reporting requirement will enhance Oklahoma's ability to ensure that an operation remains in compliance with permit requirements and that mining will be conducted in accordance with 30 CFR 817.121. We find Oklahoma's proposed revision will make its regulations no less effective than the Federal regulations. As such, we are approving Oklahoma's revision.

Oklahoma's existing regulations contain minimum requirements for permit renewal that are no less effective than the Federal regulations. The proposed addition would require, for any permit renewal requested, the operator to submit a current bond calculation (less than 60 days old) detailing the costs to reclaim the permit by a third party under the approved worst case bond scenario, and evidence that the performance bond in effect will continue in full force, as well as any additional bond required by the Department of Mines.

The Federal regulations, at 30 CFR 774.15(b)(2)(iii), require evidence that a performance bond is in effect and will remain so for the renewal period, including any bond amount adjustments required by the state at renewal. The proposed new requirement for an operator to submit a current bond calculation at permit renewal will further clarify what an operator must submit with a renewal application. By requiring a current (less than 60 days old) bond calculation from the operator, Oklahoma will have the information it needs in making its required findings under the state counterpart to 30 CFR 774.15(c)(1)(v) and to determine if bond adjustments are necessary as required under the state counterparts to 30 CFR 800.4(c), 800.15(a), and 817.121(c)(5). Because the operator's estimate will be no more than 60 days old, the information can reasonably be expected to reflect both the extent of mining and reclamation, and the economic conditions at the time of renewal, both of which directly influence bonding adequacy. We find Oklahoma's proposed revision will make its regulations no less effective than the Federal regulations. As such, we are approving Oklahoma's revision.

We asked for public comments on the amendment, but did not receive any.

On March 8, 2011, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Oklahoma program (Administrative Record No. OK-1000.03). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Oklahoma proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on March 8, 2011, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. OK-1000.03). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On March 8, 2011, we requested comments on Oklahoma's amendment (Administrative Record No. OK-1000.03), but neither responded to our request.

Based on the above findings, we approve the above specified portions of the amendment Oklahoma sent us on February 25, 2011.

To implement this decision, we are amending the Federal regulations at 30 CFR part 936, which codify decisions concerning the Oklahoma program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10) decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally- recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Oklahoma program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Oklahoma program has no effect on Federally-recognized Indian tribes.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

The Department of the Interior certifies that this rule 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. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

For the reasons set out in the preamble, 30 CFR part 936 is amended as set forth below:

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7).

You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval in the July 30, 1982, Federal Register (47 FR 33050). You can also find later actions concerning Pennsylvania's program and program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15, and 938.16.

By letter dated March 4, 2010 (Administrative Record No. PA 844.14), Pennsylvania sent us a request to remove a required program amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). The required amendment was imposed on the Pennsylvania program on December 30, 1992, Federal Register (57 FR 62222), and was codified at 30 CFR 938.16(bbb). The required amendment states the following: By May 1, 1993, Pennsylvania shall submit a proposed amendment to Section 86.63(a)(3) to require that all applications for surface mining permits include the specific information required by Section 86.63(a)(3)(i)-(viii) for all cessation orders received, by the applicant and anyone linked to the applicant through ownership and control, prior to the date of the application.

Pennsylvania provided the following information as support for its request for removal.

Pennsylvania states that under its program, a cessation order is a type of violation notice. A cessation order is a compliance order that requires cessation of all or part of a mining operation. Pennsylvania manages its enforcement program so that all violations are associated with an enforcement action. All enforcement actions are “violation notices” because they are the vehicle through which a violator is notified that there is a violation. In practice, the term “violation notice” in 25 Pa. Code 86.63(a)(3) includes the following enforcement actions: Compliance Orders, Cessation Orders, Failure to Abate Cessation Orders, Permit Suspensions, and Bond Forfeitures.

Pennsylvania also states that it manages violation and enforcement data using the eFACTS (Environment, Facility, Application, and Compliance Tracking System) database. The practice to include cessation orders along with the other enforcement actions is embedded in the report that is used to verify violation history data.

Further, the regulation at 25 Pa. Code 86.63(a)(3) requires cessation orders to be reported because in practice the term “violation notice” includes cessation orders. For these reasons, Pennsylvania is requesting that the required program amendment at 30 CFR 938.16(bbb) be removed.

For the reasons set forth below, we are approving Pennsylvania's request that we remove the required amendment codified at 30 CFR 938.16(bbb). This required amendment was imposed because the Federal counterpart to 25 Pa. Code 86.63(a)(3), at 30 CFR 778.14(c), explicitly required, in 1992, that specific information be provided for both violation notices and cessation orders. Pennsylvania's regulations required this information for violation notices, but did not explicitly require the same information with respect to cessation orders.

On December 19, 2000, OSM revised its regulations at 30 CFR 778.14(c) to drop the terms “cessation orders,” “owned or controlled by the applicant,” and “owns or controls the applicant.” Nevertheless, the revised Federal regulation requires that the information be provided for “violations” which, by definition promulgated in the same rulemaking, include “cessation orders.” See 30 CFR 701.5. Thus, in substance, the Federal reporting requirement did not change in 2000, Federal Register (65 FR 79582).

Nevertheless, Pennsylvania has demonstrated that it interprets the term “violation notice,” which is used in 25 Pa. Code 86.63(a)(3), to include cessation orders. Therefore, with the understanding that a violation notice includes a cessation order, we find that Pennsylvania's regulation is no less effective than its Federal counterpart, and we hereby approve the request to remove the required amendment at 30 CFR 938.16(bbb).

We asked for public comments on the amendment in the June 21, 2010, Federal Register (75 FR 34960) (Administrative Record No. PA 844.20). No requests for public meetings were received. We received public comments on two occasions: (1) PennFuture (representing Citizens for Pennsylvania's Future) letter dated July 21, 2010 (Administrative Record No. PA 844.22); and (2) an email from a citizen sent on June 21, 2010 (Administrative Record No. PA. 844.21).

PennFuture Comments: PennFuture comments that OSM may remove the required amendment because it has deleted from 30 CFR 778.14(c) the specific reference to “cessation order” on which the subpart was based. However, PennFuture notes while the result Pennsylvania advocates is correct, it is so for a different reason than the one Pennsylvania provides.

PennFuture contends that the argument Pennsylvania advances today—namely that the term “violation notice” in Section 86.63(a)(3) includes cessation orders—was fully available to Pennsylvania in 1992, and Pennsylvania could have sought judicial review of subpart (bbb) on that basis pursuant to 30 U.S.C. 1276(a)(1). As a result, if nothing else had changed since December 30, 1992, Pennsylvania would be barred from seeking the removal of subpart (bbb) by the principle of administrative finality incorporated into Section 706(a)(1) of SMCRA, which requires that challenges to final rules on program amendments be filed within 60 days. Thus, without more than Pennsylvania offers, OSM could not validly grant the relief Pennsylvania seeks.

OSM Response: We disagree with PennFuture that the December 19, 2000, revision to 30 CFR 778.14(c) provides the basis for removal of the required amendment, since the revised Federal regulation continues to require the relevant information to be provided for all violations, which, by definition, include cessation orders. Rather, our decision to approve Pennsylvania's request to remove the required amendment is based on our determination that Pennsylvania's regulations are no less effective than current Federal regulations. That determination, set forth above in our findings, stems from an explanation that Pennsylvania submitted on March 4, 2010 (Administrative Record No. PA 844.14).

We also disagree that Pennsylvania is time-barred by section 526(a)(1) of SMCRA, 30 U.S.C. 1276(a)(1), from submitting this explanation. Pennsylvania's interpretation is not a judicial challenge to our 1992 decision, but instead it is an attempt to explain how its program complies with a counterpart Federal regulation. Clarifications of this sort are authorized in the Federal regulations, at 30 CFR 732.17(a), which acknowledge that States may alter their programs on their own initiative. If States may propose program alterations, it follows logically that they may propose altered interpretations of their programs for OSM to consider, subject to public notice and opportunity for comment. The SMCRA regulatory scheme confers this privilege upon State regulatory authorities, but not upon private individuals or other “persons.” Instead, the remedy available to private entities is a Section 526(a)(1) challenge to an OSM program amendment decision. Whether this statutory remedy is even available to State regulatory authorities is uncertain; nevertheless, the applicable regulations are sufficiently flexible to allow States to request that OSM re-evaluate a previous decision on a program amendment.

Citizen Comment: The commenter expresses concern about Pennsylvania's laxity of enforcement on natural gas extraction and believes a fee should be added to every lease where drilling is taking place. The commenter also states the residents of Pennsylvania are at risk from their water turning into contamination.

OSM Response: We cannot respond to the comment since natural gas extraction is not germane to Pennsylvania's request, or to our finding with respect to the request.

Under Federal regulations at 30 CFR 732.17(h)(11)(i) and Section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Pennsylvania program (Administrative Record No. PA 844.14). We received responses from two agencies: (1) The Mine Safety and Health Administration, District 1, in a letter dated March 31, 2010, (Administrative Record No. PA 844.18) responded that it does not have any comments or concerns with this request; and (2) the Fish and Wildlife Service, in an email sent March 30, 2010, (Administrative Record No. 844.17) responded that it has no comments.

Under Federal regulations at 30 CFR 732.17(h)(11) (ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

None of the revisions that Pennsylvania proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

Based on the above findings, we are removing the required amendment at 30 CFR 938.16(bbb) in response to Pennsylvania's request sent to us on March 4, 2010.

This rule does not have takings implications. This determination is based on the fact that the rule is administrative in nature. It revises the CFR, but the revision does not have a substantive effect on the State's regulatory program.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

The Department of the Interior has conducted the reviews required by Section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of Subsections (a) and (b) of that Section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under Sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving Indian lands.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of Section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This determination is based on the fact that the rule is administrative in nature. It revises the CFR, but the revision does not have a substantive effect on the State's regulatory program.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule is administrative in nature and it: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, State, or local government agencies; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

For the reasons set out in the preamble, 30 CFR part 938 is amended as set forth below:

I. Background

On May 19, 2010, by Secretarial Order No. 3299, the Secretary of the Department of the Interior (Secretary) announced the restructuring of MMS. On June 18, 2010, by Secretarial Order No. 3302, the Secretary announced the name change of MMS to the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE). By these orders, the Secretary separated and reassigned the responsibilities that the former MMS previously performed to three separate organizations: The Office of Natural Resources Revenue (ONRR); the Bureau of Ocean Energy Management (BOEM); and the Bureau of Safety and Environmental Enforcement (BSEE). The ONRR is responsible for royalty management functions.

In this final rule, ONRR merely amends its Web site and mailing addresses and payment definitions listed in parts of title 30 CFR, chapter XII. This final rule does not make any substantive changes to the regulations or requirements in chapter XII. This rule will not have any effect on the rights, obligations, or interests of any affected parties. Thus, under 5 U.S.C. 553(b)(B), ONRR, for good cause, finds that notice and comment on this rule is impracticable, unnecessary and contrary to the public interest. Additionally, because this document is a “rule[] of agency organization, procedure or practice” under 5 U.S.C. 553(b)(A), this document is, in any event, exempt from the notice and comment requirements of 5 U.S.C. 553(b). Lastly, because this non-substantive rule makes no changes to the legal obligations or rights of any affected parties, and, because it is in the public interest for this rule to be effective just as soon as possible, ONRR finds that good cause exists under 5 U.S.C. 553(d)(3) to make this rule effective immediately upon publication in the Federal Register rather than 30 days after publication.

As noted, this final rule amends the following 30 CFR parts and the related existing subparts:

• Part 1210—Forms and Reports.

• Part 1218—Collection of Royalties, Rentals, Bonuses, and Other Monies Due the Federal Government.

These amendments to the regulations are explained further in the following sections:

We are revising part 1210, subparts A, B, C, D, E, and H.

ONRR's Web site and mailing address . The ONRR is amending its Web site and mailing addresses due to its reorganization. We also are updating these addresses to continually accomplish our mission and place the last burden on industry when manually submitting production and royalty forms, additional information, etc.

We are revising part 1218, subparts B and H.

ONRR's Web site and mailing addresses. We are amending these addresses due to our reorganization and in order to accomplish our mission and to place the least burden on industry when manually submitting production and royalty forms, additional information, etc.

ONRR's payment definitions. We also are amending these payment definitions and adding the definition of Pay.gov to accomplish our mission and to place the least burden on industry when paying royalties, rentals, bonuses, and other monies due the Federal Government.

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

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

The Department of the Interior certifies that this final rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This final rule will impact large and small entities but will not have a significant economic effect on either because this is a technical rule to amend ONRR's Web site and mailing addresses and payment definitions listed in title 30 CFR, chapter XII.

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

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

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

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

This final rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. This final rule does not have a significant or unique effect on State, local, or tribal governments, or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

Under the criteria in Executive Order 12630, this final rule does not have any significant takings implications. This final rule applies to Outer Continental Shelf (OCS) and Federal and Indian onshore leases. It does not apply to private property. A takings implication assessment is not required.

Under the criteria in Executive Order 13132, this final rule does not have sufficient federalism implications that warrant the preparation of a Federalism Assessment. This is a technical rule to amend ONRR's Web site and mailing addresses and payment definitions listed in title 30 CFR, chapter XII. A Federalism Assessment is not required.

This final rule complies with the requirements of Executive Order 12988. Specifically, this rule:

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

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

Under the criteria in Executive Order 13175, we have evaluated this final rule and determined that it has no effects on federally recognized Indian Tribes.

This final rule does not contain information collection requirements, and a submission to OMB is not required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this rule is categorically excluded under: “(i) Policies, directives, regulations, and guidelines: That are of an administrative, financial, legal, technical, or procedural nature.” See 43 CFR 46.210(i) and the DOI Departmental Manual, part 516, section 15.4.D. We have also determined that this rule is not involved in any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA. The procedural changes resulting from these amendments have no consequences with respect to the physical environment. This rule will not alter in any material way natural resource exploration, production, or transportation.

In developing this final rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554), also known as the Information Quality Act. The Department of the Interior (DOI) has issued guidance regarding the quality of information that it relies on for regulatory decisions. This guidance is available on DOI's Web site at http://www.doi.gov/ocio/iq.html.

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

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (a) Be logically organized; (b) Use the active voice to address readers directly; (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and (e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send your remarks to Armand.Southall@onrr.gov. To better help us revise the rule, your remarks should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

For the reasons discussed in the preamble, under the authority provided by the Reorganization Plan No. 3 of 1950 (64 Stat. 1262) and Secretarial Order Nos. 3299 and 3302, ONRR amends parts 1210 and 1218 of title 30 CFR, Chapter XII, subchapter A, as follows:

I. Background

The ONRR is responsible for collecting, accounting for, and disbursing billions of dollars per year in bonus, rental, royalty, and other revenues derived from leases and other agreements for the production of oil, natural gas, coal, geothermal energy, other minerals, and renewable energy from Federal lands onshore, Indian tribal and allotted lands, and the Outer Continental Shelf. The ONRR also is responsible for enforcement of royalty and other payment obligations under applicable statutes, regulations, leases, agreements, and contracts.

The ONRR undertakes current debt collection activities under the DCA (Pub. L. 97-365), as amended by the DCIA (Pub. L. 104-134, Title III, Ch. 10, 110 Stat. 1321-359—1321-380 (codified at 31 U.S.C. 3711, 3716-18, and 3720A). The DCIA was enacted primarily to increase collection of nontax debts owed to the Federal Government. Among other provisions, the DCIA centralized the administrative collection of much delinquent nontax debt at the U.S. Department of the Treasury's Financial Management Service (Treasury) to increase the efficiency of collection efforts. Government agencies are required to transfer nontax debt that has been delinquent for 180 days to Treasury for further collection action, including administrative offset.

This final rule (1) implements statutory provisions of the DCA, as amended by the DCIA, and (2) supplements the Government-wide debt collection standards promulgated by the Departments of the Treasury and Justice, known as the Federal Claims Collection Standards (FCCS) (31 CFR parts 900-904), as necessary and appropriate for ONRR operations. The DCIA grants the Secretary discretionary authority in many aspects of debt collection, and this final rule defines the parameters of this authority. This final rule also makes some nonsubstantive technical or clarifying changes to the proposed rule.

In the interim between development of the proposed rule and the final rule, the Secretary of the Interior separated the responsibilities previously performed by the former Minerals Management Service (MMS) and reassigned those responsibilities to three separate organizations. As part of this reorganization, the Secretary renamed MMS's Minerals Revenue Management (MRM) the Office of Natural Resources Revenue and directed that ONRR transition to the Office of Policy, Management and Budget, effective October 1, 2010. This change required the reorganization of title 30 of the Code of Federal Regulations. In a direct final rule (effective October 1, 2010), ONRR removed the royalty and other revenue reporting, payment, valuation, and appeal regulations from 30 CFR, chapter II, and recodified them in the new chapter XII. Thus, the 30 CFR citations in this final rule are to part 1218 rather than to part 218, as they were in the proposed rule. Neither these nor any of the plain language changes discussed below effect any substantive change in meaning.

The proposed rule was published on June 8, 2010 (75 FR 32343). We received comments on the proposed rule from one nonprofit organization and one trade association. We have analyzed these comments, which are discussed below:

General comments on the proposed rule fall into five categories: (1) Plain language, (2) Treasury fees, (3) Treasury offsets, (4) Chronology of collection efforts, and (5) Early resolution of bills and demands.

Public Comments: The nonprofit organization commented that the entire regulation should be rewritten in plain language.

ONRR Response: In order to be consistent with other debt collection regulations, ONRR specifically adopted regulatory language implementing the DCA and DCIA that other agencies and the Department of the Interior (Department) have already promulgated. See, e.g., Department of the Interior, National Indian Gaming Commission, debt collection regulations at 25 CFR part 513, and the Department of Health and Human Services debt collection regulations at 45 CFR parts 30 and 33. In the proposed rule, ONRR used plain language where it was appropriate and did not change the substantive meaning of those regulations. Although we decline to rewrite the entire rule as the commenter suggested, we have used plain language in the final rule in instances where plain language is appropriate and does not change the substance of the rule. For example, in § 1218.702(a), we replaced “The ONRR will collect debts from you in accordance with the regulations in this subpart * * *.” with “The ONRR will collect debts from you under the regulations in this subpart * * *.”

Public Comments: The trade association commented that Treasury has sometimes duplicated offsets and collected the same debt twice. When this occurs, the commenter notes that, although ONRR refunds the duplicate payment to the company, companies cannot recover the duplicate fee Treasury charges. The commenter believes that this rulemaking should give Treasury authority to remit the duplicate fee charged.

ONRR Response: Treasury currently charges a fee of $17.00 per offset (beginning October 1, 2010). Treasury, not ONRR, charges and keeps this fee. The ONRR does not have authority in this rulemaking to refund fees charged by Treasury or to address Treasury's processes. Thus, debtors need to make requests to Treasury for refunds of duplicate offset fees.

Public Comments: The trade association commented that, because an ONRR debt referred to Treasury may be offset by another Federal Government overpayment or monies due the debtor, in some cases, it is difficult to know where the offset occurs. The commenter also believes that this may result in cascading debt collection notices due to differing accounting and reporting records of debtors and the Federal Government. The commenter is concerned that a company may believe that their records are reconciled while the Federal Government continues to impose fines and fees for unknown debts. The commenter observes that the proposed rule does not identify a system to reconcile records.

ONRR Response: Treasury performs administrative offsets. The ONRR merely refers the debts to Treasury; Treasury does not provide us with the details of its offsets, and we do not have the authority to address Treasury's offset processes in this rulemaking. Thus, debtors need to work with Treasury regarding concerns about offsets and reconciling records.

Public Comments: The trade association suggested that we add a description of the chronological order of ONRR's debt collection process to the final rule to help clarify that process.

ONRR Response: The ONRR provided the chronological description of our internal debt referral process in the preamble to the proposed rule (75 FR 32343). However, we do not believe it is appropriate to codify such internal processes in the final rulemaking.

The trade association observed that a company may receive a bill or demand for many reasons. The commenter stated examples such as the original invoice being misdirected or never received, or the original debt being for another company but the operating rights owner received the bill. The commenter notes that, after significant research, some bills are found to already have been paid. The commenter believes that better communication would ensure early resolution of debts. The commenter also believes that these items could be cleared earlier in the process if ONRR addressed information provided by industry in a timelier manner.

ONRR Response: The ONRR issues bills and demands to lessees of record, operating rights holders, payors, and designees to collect royalties, rents, and other revenues due on Federal and Indian leases. The ONRR makes every effort to send bills and demands to the correct company and to resolve debts prior to referral to Treasury. However, it is the responsibility of the company who receives the bill or demand to either acknowledge the debt by timely payment or disagree with the debt by appealing the bill or demand within 30 days of its receipt of the bill or demand. In addition, before appealing, the company may contact ONRR to discuss the bill or demand. Nevertheless, contacting ONRR to discuss the bill or demand does not relieve the company of the requirement to file an appeal within 30 days under 30 CFR part 1290, if the bill or demand is not resolved prior to that date. The ONRR provides contact information on all bills and demands. In addition, contact information for ONRR's Financial Services program is available on our Web site at http://www.onrr.gov/fm/ContactInfo.htm.

The ONRR also sends bills or demands to the lessee's or payor's address of record, which is obtained either from ONRR's system or from the Bureau of Land Management's (BLM) LR2000 system. It is the company's responsibility to keep ONRR and BLM informed of the company's current address and contacts so that ONRR does not misdirect mailed bills and demands. Companies must update their contact information on Form MMS-4444, Addressee of Record Designation for Service of Official Correspondence (we are in the process of updating our regulations to replace MMS in our form numbers with ONRR), available on the ONRR Web site, at http://www.onrr.gov/FM/Forms/default.htm. The company must contact the appropriate BLM office for BLM address changes.

Public Comments: The trade association believes that debts referred to Treasury have sometimes been caused by ONRR errors, such as misapplying payments or generating duplicate interest bills. The commenter encourages ONRR to dedicate time and resources to the accuracy of its internal accounting.

ONRR Response: The ONRR commits significant time and resources to reconcile payments with receivables in its system. However, when company accounts are deficient or when a company does not specify how the payment should be applied, payments are applied to receivables using the First-In First-Out method of accounting. This process is necessary because Treasury will not accept referrals until all payments have been applied to receivables, leaving only open receivables in an account.

The ONRR acknowledges that we have issued some duplicate interest bills. However, we have initiated process improvements to prevent future occurrences.

Public Comments: The trade association commented that limited detail provided on demand notices makes it difficult for companies to respond, resulting in escalation of collection efforts. The commenter believes that better information is needed to resolve collections in a timely manner. The commenter stated the belief that additional information exists in the Statement of Account system that could assist in resolving debt. The commenter recommended that companies be given access to the additional information from the Statement of Account for timely bill resolution.

ONRR Response: With each initial bill or order to pay, ONRR includes related reports with detailed information. When a company does not timely pay a bill or order, if the original bill or order did not contain language stating that ONRR may refer the bill or order to Treasury to collect, then ONRR sends a followup letter to the original recipient, as well as to each potentially liable lessee, with an attachment that reflects a roll-up of the original bill. It is the recipient's responsibility to contact ONRR to request lease-specific information provided on the original bill or demand. Through ONRR's Data Warehouse, found at https://dwportal.onrr.gov, companies can access their Statement of Account, showing the dates and balances of all open receivables for each company's account. However, the Statement of Account does not contain detailed information on the items listed in an original bill or demand. Nevertheless, companies can access detailed information in the Data Warehouse for Interest (INT) bills and Indian over-recoupment (IOR) bills. When ONRR issues an INT or IOR invoice, we place the invoice and associated invoice reports (three different reports for INT, and one for IOR) in each company's folder in the Data Warehouse.

Public Comments: The trade association recommended that ONRR provide companies electronic notification of indebtedness by email to facilitate timely resolution of debts and decrease billing errors.

ONRR Response: As stated above, all INT and IOR bills are placed in a company's folder in the Data Warehouse. When a company receives access to their folder in the Data Warehouse, the designated contact receives an email notification when an invoice is issued and placed in their folder (eInvoice). The purpose of eInvoice is to address company complaints about the large volumes of paper invoice reports sent with the bill and the difficulty of analyzing reports in that format. To address this concern, eInvoice gives companies the opportunity to download the reports that accompany INT and IOR bills in order to more efficiently analyze those reports. The FIN bills (financial term bills for rent and minimum royalty) and OTH bills (usually penalty bills or compliance bills) have no associated reports. Thus, ONRR sends paper FINs and OTHs because they do not have the volume issue we addressed for INT and IOR bills. For the same reason, ONRR does not electronically send the followup demands issued to other liable companies, when the original recipient of a bill or demand does not pay.

We did not receive any comments regarding these definitions. However, in this final rule, we are removing references to specific leasing or regulatory agencies that were in the proposed rule in this definitions section and elsewhere. The Bureau of Indian Affairs (BIA) and BLM names remain the same. However, the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) is now two separate bureaus, the Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and Environmental Enforcement (BSEE).

Public Comments: The nonprofit organization suggested defining the pronouns “you” in the regulatory texts and “I” in the headings to refer to the debtor.

ONRR Response: The ONRR agrees that, for purposes of plain language, “you” can be defined as the “debtor,” and ONRR has made that change in the final rule. Therefore, in the final rule, “you” would be defined as the debtor in a new paragraph (u). However, we decline to also define “I” as the debtor because the term “I” is not used in the headings in this final rule.

Public Comments: The trade association suggested adding a definition of “past due” even though it appears to be covered by the definition of “delinquent.” The commenter believes that adding a definition for “past due” would support ONRR's stated goal of prescribing procedures specifically applicable to ONRR operations. As an alternative, the trade association suggested deleting “past due.”

ONRR Response: The commenter is correct that “past due” means the same as “delinquent.” Therefore, in § 1218.700, ONRR has added a definition of “past due” stating that “past due has the same meaning as `delinquent,' as defined above.” We are also adding the term “past due” to the definition of “delinquent.” In addition, to make clear that debts are not delinquent unless “legally enforceable,” we added that term to the definition and added language to clarify that debts or claims are delinquent when not paid by the time prescribed by the applicable act, law, regulation, lease, order, demand, notice of noncompliance, and/or assessment of civil penalties, contract, decision, or any other agreement. In the final rule the term is defined as follows: “ Delinquent or past due refers to the status of a debt and means a debt that is legally enforceable and has not been paid within the time limit prescribed by the applicable act, law, regulation, lease, order, demand, notice of noncompliance, and/or assessment of civil penalties, contract, decision, or any other agreement.”

Although we did not receive comments on this definition, we made a change to this term to make clear that we will refer debts or claims only for which there has been a final non-appealable agency determination that the debt, in the amount stated, is due. See discussion of the terms “debt” and “claim” below.

The rule still states that we also will determine there are no legal bars to collection by offset such as debts subject to the Bankruptcy Code (Title 11 of the United States Code). For such debts, bankruptcy law will govern the debt collection process.

Public Comments: The trade association commented that the definition of “lessee” under 30 CFR part 1218 in the proposed rule is broader than the definition of “lessee” in part 1290. The association believes that different definitions under the parts would create the potential for confusion, ambiguity, and inconsistent results. The commenter also believes that the definition in 30 CFR part 1218 expands the potential liability of a party's debts to include those of another owner in the same property. Finally, the commenter believes that the regulations regarding the underpayment or nonpayment of royalties by a responsible party should not deviate from definitions set forth in the Royalty Simplification and Fairness Act (RSFA), Public Law 104-185, 110 Stat. 1700, as corrected by Public Law 104-200.

ONRR Response: The ONRR intended the definition of “lessee” under this rulemaking to be broad because this rule applies to all mineral lessees, not just Federal oil and gas leases. As we stated in the preamble to the proposed rule, “[t]he definition in subsection (o) is broader than the definition of `lessee' in 30 CFR part 1206 because it is intended to apply to holders of leases and other contracts and agreements for any type of Federal and Indian minerals and resources” (75 FR 32344). However, nothing in this rulemaking purports to change a lessee's liability for payments. Indeed, under proposed § 1218.702(b), ONRR will transfer only “legally enforceable” delinquent debts (defined as a final, non-appealable agency determination that the debt, in the amount stated, is due, and there are no legal bars to collection by offset). If a person is not liable for the debt, then, by definition, it is not “legally enforceable” against that person. Finally, RSFA applies only to Federal oil and gas leases. Thus, the definition of “lessee” in this part needs to be broader than RSFA because the rule also applies to debts on leases other than Federal oil and gas leases.

Public Comments: The trade association noted that paragraph 1218.702(b) refers to “other agreements” but does not provide a definition or illustration of agreements here or elsewhere in this subpart.

ONRR Response: With respect to the use of the term “other agreement” in the definitions of “delinquent debt” and “lessee,” it means any “agreement to pay the Department money, funds, or property,” which is not necessarily tied to the extraction, development, or use of a mineral or other resource. For example, a gas storage agreement between BLM and a lessee would be an “other agreement.” Such agreements are distinguishable from leases that authorize exploration for and production of oil, natural gas, other minerals or geothermal resources, or production of renewable energy.

To be clear, ONRR is adding the following definition of “other agreement” in a new paragraph (p) in § 1218.700 in the final rule and making corresponding changes to the portions of the rule that refer to that term:

(p) Other agreement means any agreement other than a lease, and includes, but is not limited to, any agreement between you and the Department to pay the Department money, funds, or property, regardless of form.

For clarity, we have also added a definition of the term “lease” in the final rule as follows: “ Lease means any contract, profit-share arrangement, joint venture, or other agreement issued or approved by the United States under any statutory authority, including but not limited to a mineral leasing law, that authorizes exploration for and development or extraction of oil, gas, coal, any other mineral or geothermal resources, or power generation from renewable energy sources, on Federal or Indian tribal or allotted lands or the Outer Continental Shelf. Depending on the context, lease also may refer to the land area covered by that authorization.”

The ONRR received no public comment on the proposed definition of these terms. However, in preparing the final rule, we have concluded that further clarity in this definition is appropriate. We added to this definition that debts or claims must be “legally enforceable.” We added that term to the definition to make clear that only non-appealable final decisions of the Department are referable debts or claims because when ONRR or the ONRR Director issues an order or decision that then is appealed or is appealable to a higher level within the Department, the lessee's or payor's ultimate liability has not been finally established within the Department. In these circumstances, referral to the Treasury Department for further collection action under the DCA and FCCS is not appropriate. As discussed above, ONRR also has made a corresponding change to the definition of “legally enforceable” in the final rule to refer to a final non-appealable agency determination that the debt is due.

This revised definition also refers only to debts owed to or collectible by the United States, because lessees and royalty payors and holders of permits, easements, or rights-of-way for production of renewable energy do not owe money to states or other political subdivisions. We added “collectible by” to cover debts the Department collects on behalf of others, including, but not limited to, individual Indian mineral owners and Indian tribes.

We received no comments on this section. However, in the final rule, we have made clarifying technical revisions to paragraph (b) to make clear that the regulations adopted in this final rule will supplement and adapt the FCCS as necessary and appropriate to ONRR's particular enforcement circumstances and sphere of responsibility.

We received no comments on paragraph (a). In the final rule, however, we are clarifying that ONRR will collect debts under these regulations “in addition to other applicable statutory and regulatory authorities.” For example, the Federal Oil and Gas Royalty Management Act of 1982, as amended, 30 U.S.C. 1701-1758 (FOGRMA), provides ONRR with extensive enforcement tools including, particularly, authority to assess civil penalties. See 30 U.S.C. 1719 and 1720a. The FCCS, at 31 CFR 900.1(a), acknowledges the precedence of specific statutes and regulations that apply to a particular agency's activities.

Public Comments: Paragraph (b) of this proposed section states that ONRR will refer debts to Treasury “within 180 days from” the date the debt became delinquent, which the trade association interprets to mean that ONRR could refer the debt much sooner than 180 days. The commenter believes this creates confusion when compared to paragraphs 1218.703(a)(6) and (8), which describe situations in which enforced collection can be avoided. The commenter also believes it creates confusion when read with paragraph 1218.704(b), which says that penalties will not be assessed until the debt is 90 days old, and that they will be assessed at the time the debt is referred to Treasury. The commenter states that it is unclear if ONRR intends to refer debts to Treasury before they are 90 days old.

ONRR Response: In instances where other collection and enforcement efforts have proven unsuccessful or may not be economical, ONRR may refer a debt to Treasury for further collection efforts. The final rule reflects the principle that ONRR's enforcement tools are not limited to the DCA, as amended by the DCIA, and the FCCS. The Treasury regulations implementing 31 U.S.C. 3711 give agencies discretion to voluntarily refer debts that are delinquent for less than 180 days [31 CFR 285.5(d)(2) and 285.12(h)]. To be clear, the ONRR is retaining its discretion in this rulemaking to refer debts that are less than 180 days delinquent.

Our retention of that discretion does not conflict with § 1218.703(a)(6) and (8) of the proposed rule. Section 1218.702(b) deals with referral of delinquent debts whereas paragraph (a)(6) of § 1218.703 deals with how to avoid delinquency and late payment charges. In any event, we removed subparagraph § 1218.703(a)(8) in the final rule, and, instead, revised subparagraph § 1218.703(b)(1) to address the right to appeal a notice in the rare instance in which the recipient of an ONRR notice of an intent to refer a debt to Treasury has not had a previous opportunity to appeal the merits of the debt, as discussed below.

We also do not agree that proposed § 1218.702(b) created confusion with § 1218.704(b). However, the point is moot because in this final rule we have decided to remove the provision in § 1218.704(b) that deals with the assessment of penalties on delinquent debts under the DCA as amended by the DCIA. Rather, we will assess penalties at our discretion under our existing authority at 30 U.S.C. 1719.

We did not receive any comments regarding this section. However, as discussed above, we have eliminated proposed subparagraph (a)(8) from this final rule. Subparagraph (a)(8) in the proposed rule stated that the notice we would provide of our intent to refer a debt would include “[y]our opportunity for review under 30 CFR part 1290 or part 1241, if any. See paragraph (b) of this section.” We removed this subparagraph because we added language to clarify that the notices ONRR issues under this section are not appealable unless the notice specifically gives the recipient appeal rights. This is because most debts we refer to Treasury will be “legally enforceable,” as discussed above, and, thus, would have already been subject to an appeal.

However, in some instances, a party who is or may be secondarily liable for all or part of an obligation (such as a lessee of record under a Federal oil and gas lease who is not an operating rights holder, see 30 U.S.C. 1712(a)) may not have received notice of the original order to pay addressed to the operator or other royalty payor whose failure to pay resulted in the debt. The notice provided under paragraph (a) of this section informs the recipient that ONRR intends to refer a particular debt to Treasury, not that it has already done so. In instances such as those described here, if ONRR sends the notice of its intent to refer the debt to Treasury to a liable lessee who did not receive the original order (or decision on appeal or other notice or decision) that is the basis of the debt, ONRR would advise the lessee that it has a right to appeal under 30 CFR part 1290. If the lessee pursues an appeal, ONRR would not refer it to Treasury to collect against that lessee unless and until the appeal is resolved against that lessee. (In the meantime, however, ONRR could refer to Treasury to collect against the operating rights holder or other payor who originally received the order and is primarily liable for the debt.) Thus, we have revised § 1218.703(b)(1) in the final rule to make clear that a notice is not appealable unless it specifically so states.

The notice will inform the lessee or payor of the potential for collection by administrative offset and administrative costs that may be assessed against you under the DCA, as amended by the DCIA, and the FCCS.

Public Comments: The trade association noted that paragraph (b) of this section would impose penalties of 6 percent per year, but the existing regulation at 31 CFR 901.9(d) says penalties are “not to exceed 6 percent.” The trade association prefers the “not to exceed” language because the commenter believes it would give ONRR the flexibility to adjust penalties based on the specific situation. This commenter also suggested that, before ONRR assesses a $436 administrative fee under paragraph (c) of this section, ONRR should use every means to resolve the debt and minimize notices of referral to Treasury.

ONRR Response: Under the FCCS at 31 CFR 901.9(d), the 6-percent penalty described in the proposed rule will not be assessed under the DCIA because, under FOGRMA, at 30 U.S.C. 1719 and 1720a, penalties are “otherwise established * * * by statute.” Accordingly, we have revised the rule to state that ONRR will use its existing civil penalty authorities and have rewritten proposed paragraph (b) of this section to state that “ONRR will assess penalties under our authority in 30 U.S.C. 1719 and 1720a, and implementing regulations at 30 CFR part 1241.”

In addition, we made certain changes to this section of the final rule for purposes of clarity. We added a new subparagraph (a)(2)(iii) to make clear that interest will accrue on civil penalties ONRR assesses under 30 CFR 1241.71.

We also made revisions to proposed paragraph (c) regarding administrative costs. Unlike penalties and interest, we are collecting fees to recover our costs to refer a debt under the DCIA. In addition, we removed proposed paragraph (d), which provided that interest, penalties, and administrative costs “will continue to accrue throughout any appeal process,” and moved a revised portion of that paragraph regarding administrative costs to paragraph (c) for two reasons. First, in this final rule, we removed references to the accrual of interest and penalties because interest and penalties will continue to accrue under the applicable portions of 30 CFR chapter XII cited in this final rule. Second, we added language to make clear that administrative costs may be assessed during the pendency of an appeal if the notice you received gave you the right to appeal and you exercised that right. Further, we clarified in paragraph (c) that the administrative costs that will be assessed during any appeal process are the $436 in administrative costs ONRR will incur if your appeal is denied and ONRR must refer the delinquent debt to Treasury.

Public Comments: This section of the final rule provides that the ONRR Director may recommend to the agency with responsibility for issuing leases, rights-of-way, easements, permits, etc., that a person (or entity) may have its ability to engage in leasing either suspended or revoked if it “inexcusably or willfully” fails to pay. This section of the proposed rule stated that the former MMS could revoke a debtor's ability to engage in offshore leasing. However, ONRR is now a separate agency from the remainder of the former MMS [now the Bureau of Ocean Energy Management (BOEM) and Bureau of Safety and Environmental Enforcement (BSEE)], and ONRR has no authority over leasing either offshore or onshore.

The trade association believes that ONRR should define or delete the word “inexcusably” in this section because it is subject to interpretation. In addition, the commenter believes that, because barring a lessee from engaging in Federal offshore leasing, licensing, etc., in the event of “inexcusably or willfully” failing to pay is such a “harsh penalty,” this section should clearly state the lessee's appeal rights. Further, the commenter believes that the lessee also should have the right to seek relief through the judicial appeals process. To accomplish this end, the commenter believes that an Assistant Secretary of the Department of Interior should decide whether to bar the debtor from leasing or other activities.

Finally, the trade association states that, as written, the proposed rule provides that, when ONRR recommends to the leasing or regulatory agency that a debtor's lease be suspended, ONRR will recommend that the suspension “should only last as long as the debtor's indebtedness.” The commenter agrees with that limitation but believes the proposed rule does not apply that limitation to Federal offshore leases. The commenter suggests adding that the suspension “should only last as long as the debtor's indebtedness” to the first sentence of § 1218.705.

ONRR Response: We are declining the commenter's suggestion that we should define “inexcusably.” Whether a particular failure to pay or series of failures to pay is sufficiently inexcusable as to warrant a recommendation of debarment from leasing depends on the particular circumstances, and it is difficult to formulate a single definition that would adequately anticipate all such situations. Each situation will have to be considered on a case-by-case basis.

Moreover, we disagree with the commenter's suggestion that we add appeal rights regarding the Director's recommendation to the leasing or regulatory agency to revoke a lessee's ability to obtain a lease, license, etc. in this rulemaking. The Director's recommendation in this rulemaking constitutes only a recommendation to the leasing or regulatory agency with authority to actually revoke, not the actual revocation. Moreover, § 1218.705 does not itself constitute debarment authority. The extent to which the leasing or regulatory agency possesses debarment authority is a function of the statutes and regulations those agencies administer, not of ONRR rules. However, if the leasing or regulatory agency refuses to issue a company a lease, permit, license, etc., based on ONRR's recommendation, then that decision may or may not be appealable under the particular bureau's regulations. Therefore, we are not adding appeal rights in this rulemaking for internal bureau-to-bureau communications.

Furthermore, as discussed above, in this final rule, we are removing references to specific leasing or regulatory agencies that were in the proposed rule both in this section and the definitions section. Although the names of BIA and BLM remain the same, the former Bureau of Ocean Energy Management, Regulation and Enforcement is now two separate organizations—BOEM and BSEE. The intent of this rule is to make such referrals to the appropriate leasing or regulatory agency within the Department regardless of that entity's name.

Finally, we also disagree with the commenter's suggestion that we should add the phrase “should only last as long as the debtor's indebtedness” to the first sentence of proposed § 1218.705. That section, as rewritten in plain English in this final rule states that the Director may recommend that the leasing or issuing agency, under statutory or regulatory authority applicable to that agency, revoke your ability to engage in Federal or Indian leasing, licensing, or granting of easements, permits, or rights-of-way if you inexcusably or willfully fail to pay a debt. The Director will recommend that revocation of your ability to engage in Federal or Indian leasing, licensing, or granting of easements, permits, or rights-of-way should last only as long as your debt remains unpaid or unresolved.

For clarity, we removed the word “onshore” in the first sentence to make it clear that the Director's recommendation may apply to any Federal or Indian leases. We are not adding the additional language to the first sentence because the second sentence of that section already contains the limitation the commenter suggests.

This is a technical rule formalizing and enhancing current ONRR debt collection practices and procedures consistent with the statutory mandates under the DCA and DCIA. The changes explained above will have no royalty impacts on industry, state and local governments, Indian tribes and individual Indian mineral owners, and the Federal Government. Industry will incur additional administrative costs under this rulemaking.

(1) Royalty Impacts. None.

(2) Administrative Costs. The ONRR will assess $436 for recovery of administrative costs for each referral of debt to Treasury. We calculated the $436 administrative costs based on our estimate of the average actual costs we incur to refer debts to Treasury.

(3) Penalties. The ONRR will assess penalties under existing authority at 30 U.S.C. 1719 and 1720a and 30 CFR part 1241. This final rule therefore will have no impact on penalties.

(1) Royalty Impacts. None.

(2) Administrative Costs—State and Local Governments. The ONRR determined that this rule will have no administrative costs for state and local governments.

(3) Penalties. None.

(1) Royalty Impacts. None.

(2 ) Administrative Costs. The ONRR determined that this rule will have no administrative costs to Indian tribes and individual Indian mineral owners.

(3) Penalties. None.

(1) Royalty Impacts. None.

(2) Administrative Costs. The rule will have insignificant or no net administrative costs to the Federal Government. The final rule provides for a fee that we will recover from industry for administrative costs to the Government incurred as a result of collection activities.

(3) Penalties. None.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

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

The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This rule will affect large and small entities but will not have a significant economic effect on either. Based on historical data, we estimate that the rule will affect approximately 85 small entities per year.

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

a. Does not have an annual effect on the economy of $100 million or more. This is a technical rule formalizing and enhancing current ONRR debt collection practices and procedures consistent with the statutory mandates under the DCA and DCIA. Industry will incur fees for administrative costs for failure to pay a delinquent debt to the Federal Government. Industry may avoid these administrative costs by accurately and timely paying debts owed to the Federal Government.

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

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

This rule does not impose an unfunded mandate on state, local, or tribal governments, or the private sector of more than $100 million per year. This rule will not have a significant or unique effect on state, local, or tribal governments, or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This is a technical rule formalizing and enhancing current ONRR debt collection practices and procedures consistent with the statutory mandates under the DCA and DCIA. Under this rule, ONRR will impose fees to cover the administrative costs of recovering delinquent debts. Recovery of administrative costs is consistent with the DCA, DCIA, and 31 U.S.C. 9701.

Under the criteria in Executive Order 12630, this rule does not have any significant takings implications. This rule will apply to Federal and Indian leases only. It will not apply to private property. A takings implication assessment is not required.

Under the criteria in Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This is a technical rule formalizing and enhancing current ONRR debt collection practices and procedures. A Federalism Assessment is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

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

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

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

This rule does not contain information collection requirements, and a submission to OMB is not required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this rule is categorically excluded under: “(i) Policies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature.” See 43 CFR 46.210(i) and the DOI Departmental Manual, part 516, section 15.4.D. We have also determined that this rule is not involved in any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA. The procedural changes resulting from these amendments will have no consequences with respect to the physical environment. This rule will not alter in any material way natural resource exploration, production, or transportation.

In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554), also known as the Information Quality Act. The Department of the Interior has issued guidance regarding the quality of information that it relies on for regulatory decisions. This guidance is available on DOI's Web site at http://www.doi.gov/ocio/iq.html.

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

For the reasons stated in the preamble, the Office of Natural Resources Revenue amends 30 CFR part 1218 as set forth below:

The Amtrak Railroad Bridge, across the Niantic River, mile 0.0, at Niantic, Connecticut, has a vertical clearance in the closed position of 16 feet at mean high water. The drawbridge operation regulations are listed at 33 CFR 117.215(a).

The operator of the bridge, National Passenger Railroad Corporation (Amtrak), requested a temporary deviation from the regulations to facilitate completion of machinery installation and lift span work at the new Niantic River RR Bridge. To facilitate completion of the work at the new bridge, Amtrak has requested a total of 20 nighttime closures between 11 p.m. through 6 a.m., Monday through Thursday, beginning May 15, 2012 until August 15, 2012.

The waterway users are recreational vessels and seasonal fishing boats.

Under this temporary deviation the Amtrak Railroad Bridge may remain in the closed position during the hours of 11 p.m. until 6 a.m., Monday through Thursday, beginning May 15, 2012 until August 15, 2012. The Amtrak Railroad Bridge will require 20 nighttime closures during this period. The exact calendar dates for the closures have not been established due to other related construction at the bridge. The exact closure dates will be published in the Local Notice to Mariners one week in advance of the closures.

Vessels that can pass under the bridge in the closed position may do so at all times.

The waterway users were advised of the requested bridge closure and offered no objection.

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

The Massachusetts Bay Transportation Bridge, across Manchester Harbor, mile 1.0, at Manchester, Massachusetts, has a vertical clearance in the closed position of 6 feet at mean high water and 15 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.603.

The operator of the bridge, Massachusetts Bay Transportation Authority, requested a temporary deviation from the regulations to facilitate scheduled bridge maintenance, timber replacement at the bridge.

The timber replacement is vital necessary work that must be performed when no rail service is operating during weekend hours.

The waterway users are recreational vessels many of which can pass under the bridge in the closed position.

The bridge is normally crewed on a limited basis from 9 a.m. to 1 p.m. and from 1 p.m. to 6 p.m., April 1 through Memorial Day due to infrequent requests to open the bridge.

Under this temporary deviation the Massachusetts Bay Transportation Authority Bridge may remain in the closed position from 1 a.m. on Saturday, April 28, 2012 through 4 a.m. on Monday, April 30, 2012 and from 1 a.m. on Saturday, May 5, 2012 through 4 a.m. on Monday, May 7, 2012. Vessels that can pass under the bridge in the closed position may do so at all times.

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The final details for this event were not received by the Coast Guard with sufficient time for a comment and period to run before the start of the event. Thus, delaying this rule to wait for a notice and comment period to run would be impracticable and would inhibit the Coast Guard's ability to protect the public from the hazards associated with maritime fireworks displays.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, a 30 day notice period would be impracticable.

On the evening of May 26, 2012, fireworks will be launched from a point on Lake Charlevoix to commemorate Memorial Day. The Captain of the Port, Sector Sault Sainte Marie, has determined that the Memorial Day Tribute Fireworks Display will pose significant risks to the public. The likely congested waterways in the vicinity of a fireworks display could easily result in serious injuries or fatalities.

To mitigate the risks associated with the Memorial Day Tribute Fireworks Display, the Captain of the Port, Sector Sault Sainte Marie will enforce a temporary safety zone in the vicinity of the launch site. This safety zone will encompass all waters of Lake Charlevoix, in the vicinity of Sommerset Pointe, within the arc of a circle with an 800ft radius from the fireworks launch site located on a barge positioned 45°13′04″ N, 085°03′41″ W [DATUM: NAD 83]. The safety zone will be effective and enforced from 10 p.m. until 10:45 p.m. on May 26, 2012

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Sault Sainte Marie, or his or her on-scene representative. The Captain of the Port, Sector Sault Sainte Marie, or his or her on-scene representative may be contacted via VHF channel 16.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone will be relatively small and will exist for only a minimal time. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by proper authority.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Lake Charlevoix between 10 p.m. and 10:45 p.m. on May 26, 2012.

This safety zone will not have significant economic impact on a substantial number of small entities for the following reasons: this rule will only be enforced for a short period of time. Vessels may safely pass outside the safety zone during the event. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port, Sector Sault Sainte Marie, to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Correction: On March 10, 2012, the Burnham Park Yacht Club (BPYC) submitted a comment in response to the Coast Guard's NPRM that preceded the aforesaid TFR. In its comment, the BPYC described itself as a non-profit organization that provides tender services, mast stepping, and dining to BPYC members and to the public in general. The BPYC explained that it expects the NATO conference to have two impacts on its business. First, the BPYC expects the NATO conference to severely limit the BPYC's income stream, which is normally generated from the aforementioned services. Second, the BPYC expects the NATO conference to have an impact on the BPYC's membership development, which typically occurs in mid April. In light of these impacts, the BPYC asked to meet with an agent of the Coast Guard to discuss the BPYC's expected losses and to arrive at a reasonable compensation. On April 20, 2012, a member of the Coast Guard's offices in Cleveland, OH, on behalf of the Captain of the Port, Sector Lake Michigan, telephoned the BPYC and confirmed the above understanding of the BPYC's comment and its request.

In light of the BPYC's comment, the Coast Guard will not change the TFR published on April 13, 2012. Although the BPYC raised concerns about the economic impact of the Coast Guard's security zones, the BPYC's comment did not directly speak to the design, the establishment, or the enforcement of these security zones. The BPYC did not ask the Coast Guard to modify the security zones or to reconsider the manner in which they are enforced. Rather, the BPYC simply asked to meet with the Coast Guard to discuss compensation. While the Coast Guard takes seriously the economic impact that its rules might have on small entities, the Coast Guard is unable to provide compensation to small entities so impacted.

Although the Coast Guard is unable to directly compensate small entities for the economic impacts of its rules, the BPYC is encouraged to contact CWO Jon Grob via the contact information provided above to discuss the Coast Guard's enforcement of the security zones discussed herein and options for compliance.

Invitation To Comment

Although the Secretary has decided to issue these interim final regulations without first publishing proposed regulations for public comment, we are interested in whether you think we should make any changes in these regulations. We invite your comments. We will consider these comments in determining whether to revise these interim final regulations.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these interim final regulations. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Federal Pell Grant Program.

During and after the comment period, you may inspect all public comments about these interim final regulations by accessing www.regulations.gov. You may also inspect the comments in person in Room 8083, 1990 K Street NW., Washington, DC, between 8:30 a.m. and 4 p.m. Washington, DC time, Monday through Friday of each week, except Federal holidays.

On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these interim final regulations. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

In August of 2008, the Higher Education Opportunity Act (HEOA), Public Law 110-315, added section 401(b)(5) to the Higher Education Act of 1965, as amended (HEA), which provided that a student enrolled in a certificate, associate degree, or baccalaureate degree program at least half-time for more than one academic year may receive up to two consecutive Federal Pell Grant Scheduled Awards during a single award year. Although the addition of section 401(b)(5) was effective beginning with the 2009-2010 award year, we did not publish final regulations until October 29, 2009 (74 FR 55902). Those regulations were effective beginning with the 2010-2011 award year. Prior to the publication of the October 29, 2009, final regulations, we provided guidance to institutions on how to implement the provisions of section 401(b)(5) to allow certain students to receive two Pell Grants in one award year for the 2009-2010 award year.

Subsequently, section 1860(a)(2) of division B of the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Pub. L. 112-10) repealed section 401(b)(5) of the HEA. The repeal of this provision became effective with the 2011-2012 award year.

Because there is no longer an opportunity for a student to receive a second Federal Pell Grant Scheduled Award, we are amending current §§ 690.63(g)(1), 690.63(h), 690.64, 690.65(c), 690.65(f), and 690.67.

We discuss substantive issues under the sections of the regulations to which they pertain. Generally, we do not address regulatory provisions that are technical or otherwise minor in effect.

Two Federal Pell Grants in an Award Year (§§ 690.63(g)(1), 690.63(h), 690.64, 690.65(c), 690.65(f), and 690.67)

Statute: Section 401(b)(5) of the HEA, as amended by the HEOA, provided that a student may receive up to two consecutive Federal Pell Grant Scheduled Awards during a single award year if the student is enrolled at least half-time for more than one academic year, more than two semesters, or the equivalent time during a single award year. The student must also be enrolled in a certificate, associate degree, or baccalaureate degree program. Section 484(s)(3) of the HEA provides the authority to waive this provision for students with intellectual disabilities who enroll in a comprehensive transition and postsecondary program. Section 1860(a)(2) of division B of the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Pub. L. 112-10) repealed section 401(b)(5) of the HEA.

Current Regulations: Current § 690.63(g)(1) provides that the amount of a student's award for the award year may not exceed his or her Scheduled Federal Pell Grant award for the award year unless the student is eligible to receive a second Scheduled Federal Pell Grant award in the same award year under current § 690.67.

New Regulations: We are revising current § 690.63(g)(1) to remove the reference to § 690.67.

Reasons: With the repeal of section 401(b)(5) of the HEA, it is no longer necessary to have procedures for awarding a student his or her second Scheduled Award in an award year. Therefore, these interim final regulations remove § 690.67, and we remove the unnecessary reference to § 690.67 from current § 690.63(g)(1).

Current Regulations: Under current § 690.63(h), if a student is eligible for the remaining portion of a first Scheduled Award in an award year and for a payment from the second Scheduled Award, the student's payment is calculated using the annual award for his or her enrollment status for the payment period. The student's payment is the remaining amount of the first Scheduled Award being completed plus an amount from the second Scheduled Award in the award year up to the total amount of the payment for the payment period.

New Regulations: Current § 690.63(h) is removed.

Reasons: With the repeal of section 401(b)(5) of the HEA, which provided that an otherwise eligible student could receive more than one Federal Pell Grant in an award year, it is no longer necessary to provide regulations that calculate a student's Federal Pell Grant payment when the student is eligible to receive a payment from his or her first and second Scheduled Awards in a payment period. Therefore, we are removing current § 690.63(h).

Current Regulations: Under current § 690.64, if a payment period is scheduled to occur in two award years, an institution must consider this “crossover” payment period to occur entirely in one award year and pay the student with funds from the award year to which the payment period is assigned. An institution must assign the payment period to that award year in which the student would receive the greater payment for the payment period based on the information available at the time that the student's Federal Pell Grant is initially calculated. If the institution subsequently receives information that the student would receive a greater payment for the payment period by reassigning the payment to the other award year, the institution is required to reassign the payment to the award year providing the greater payment.

New Regulations: Under new § 690.64(a) and (a)(1) of these interim final regulations, if a student enrolls in a payment period that is scheduled to occur in two award years, the entire payment period must be considered to occur within one award year.

New § 690.64(a)(2) provides that the institution must determine for each Federal Pell Grant recipient the award year in which the payment period will be placed.

New § 690.64(a)(3) and (4) require an institution to pay a student with funds from the same award year to which the payment period was assigned.

New § 690.64(b) provides that an institution may not make a payment that will result in the student receiving more than his or her Scheduled Federal Pell Grant for an award year.

Reasons: These interim final regulations amend § 690.64 to conform to the change in the law that repealed section 401(b)(5) of the HEA.

We have retained most of current § 690.64 with the exception of § 690.64(b) which requires an institution to assign a crossover payment period to the award year in which the student receives the greater Federal Pell Grant award. The purpose of current § 690.64(b) was to maximize the student's eligibility over the two award years in which the payment period was scheduled to occur in anticipation of a student receiving a second Federal Pell Grant Scheduled Award. Since a student may not receive a second Federal Pell Grant Scheduled Award, it is no longer necessary to require that the student's award for the payment period be based on the higher Federal Pell Grant payment. Therefore we are removing current § 690.64(b). Instead, under new § 690.64(a)(2), institutions have the ability to assign a crossover payment period in a way that meets the need of its students and maximizes a student's eligibility over the two award years in which the crossover payment period may occur. New § 690.64(b) is necessary to clarify that an institution may not make a payment that will result in the student receiving more than his or her Scheduled Federal Pell Grant for an award year.

Current Regulations: Current § 690.65(c) provides that a student who receives a Federal Pell Grant at one institution and subsequently enrolls at a second institution within the same award year may only be paid at the second institution for the period of time the student is enrolled at that institution. The institution must adjust the student's grant to ensure that funds received by the student for the award year do not exceed the student's Scheduled Federal Pell Grant for that award year, unless the student is eligible for a second Scheduled Federal Pell Grant during that same award year.

Current § 690.65(f) provides that a transfer student must repay any amount received in an award year that exceeds his or her first or second Scheduled Federal Pell Grant.

New Regulations: We are revising current § 690.65(c) and (f) to remove the references to § 690.67.

Reasons: With the removal of § 690.67 by these interim final regulations in accordance with the repeal of section 401(b)(5) of the HEA, it is no longer necessary to provide regulations that establish procedures for awarding a student his or her second Scheduled Award in an award year. Therefore the references to § 690.67 are removed from current § 690.65(c) and (f).

Current Regulations: Current § 690.67(a) provides that an institution participating in the Federal Pell Grant Program shall award a payment of a second Scheduled Award to a student in an award year if an otherwise eligible student is enrolled for credit or clock hours that are attributable to the student's second academic year in the award year.

Current § 690.67(b) provides the methods by which an institution must determine the credit or clock hours that a transfer student has earned at other institutions during the award year.

Current § 690.67(c) provides that a financial aid administrator may waive the requirement that a student complete the credit or clock hours in the student's first academic year in the award year if the administrator determines that the student was unable to complete those clock or credit hours due to circumstances beyond the student's control. In this situation, the financial aid administrator is required to make and document the determination on an individual basis.

Current § 690.67(d) provides that in determining a student's eligibility for a second Scheduled Award in an award year, an institution may not use credit or clock hours that the student received based on Advanced Placement (AP) programs, International Baccalaureate (IB) programs, testing out, life experience, or similar competency measures.

New Regulations: Current § 690.67 is removed.

Reasons: With the repeal of section 401(b)(5) of the HEA, which provided that an otherwise eligible student could receive more than one Federal Pell Grant in an award year, it is no longer necessary to provide regulations that establish procedures for awarding a student his or her second Scheduled Award in an award year. Therefore, we are removing current § 690.67.

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

1. Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

2. Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

3. Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

4. Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive Order.

The statutory elimination of the two Pell Grant option as reflected in this regulatory action is economically significant subject to review by OMB under section 3(f)(1) of Executive Order 12866.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

1. Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

2. Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things, and to the extent practicable—the costs of cumulative regulations;

3. In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

4. To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

5. Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these regulations only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that these regulations are consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

In accordance with the Executive orders, the Department has assessed the potential costs and benefits of this regulatory action. The potential costs associated with this regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.

In assessing the potential costs and benefits—both quantitative and qualitative—of this regulatory action, we have determined that the benefits justify the costs.

These interim final regulations remove the regulatory provisions related to the option of receiving two Pell Grants in one year, an option that was eliminated by section 1860(a)(2) of division B of the Department of Defense and Full-Year Continuing Appropriations Act, 2011. This option was originally authorized by the HEOA and was first available in the 2009-2010 award year. These interim final regulations generally restore the long-standing policy related to the timing and availability of Pell Grants within an award year as it existed before the 2009-2010 award year. In the following sections, the Department summarizes the effects these interim final regulations are likely to have on the Federal student aid programs, institutions of higher education, and students.

Federal Government: Because Pell Grants are an entitlement to eligible recipients, any changes to the program that reduce eligibility will result in reduced costs of the Pell Grant Program. According to the Department's estimates, the elimination of the option for two Pell Grants in one year will remove the eligibility of about 1.9 million students annually and reduce costs in the program by approximately $24.3 billion over five years. When discounted at a 3 percent rate and a 7 percent rate, this reduces costs in the Pell Grant Program over 5 years by $22.2 billion and $19.7 billion, respectively. These reduced costs were attributed to the passage of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, and these interim final regulations make the regulatory changes to give effect to the statute but do not generate any further cost reductions.

Institutions: The effect of the statutory change reflected in these interim final regulations on institutions will depend on the extent to which the availability of two Pell Grants in one year induced students to pursue additional credits. The availability of two Pell Grants in one award year was meant to accelerate students' academic programs and hopefully lead to more completions in a timely period. If this occurred and students who received two Pell Grants were induced to take more courses and progress further in their academic pursuits, the institutions will lose some tuition and fee revenue from the statutory change related to these interim final regulations. To the extent students took classes they otherwise would have taken anyway, the availability of two Pell Grants just substituted one source of tuition and fee revenue for another and may have shifted the timing of when the institutions received those funds. The limited time the two Pell Grants option was available, however, makes it difficult to determine the extent to which revenues will be reduced or shifted to other sources. As shown in Table 1, approximately 10 percent of Pell Grant recipients received a second Pell Grant in Award Year (AY) 2009-2010, and that was expected to increase to 20 percent by AY 2012-2013. Given projected use of the two Pell Grants option, the estimated maximum revenue loss to institutions would be approximately $24.3 billion over 5 years from AY 2011-2012 to AY 2015-2016. However, as stated earlier in this discussion, it is likely that a significant portion of this revenue would be shifted to other sources or be captured over a different time period, so the cost to institutions from the statutory changes should be much less. The institutions' potential loss of revenue related to the elimination of the two Pell option will depend on tuition reductions institutions choose to grant and the students' response in finding alternative sources of funding or reducing credits taken. The exact effect on institutions cannot be quantified, but it is likely to be substantially lower than the $24.3 billion discussed above.

Students: The effect of the statutory change reflected in these interim final regulations on students is the loss of grant aid and potential academic delay or decreased likelihood of completion. Students will have to replace the reduced grant aid with savings, earnings, increased debt, or tuition reductions granted by institutions. By AY 2012-2013 approximately 20 percent of Pell Grant recipients were expected to receive two Pell Grants in one year, and they could lose grant aid up to the Pell Grant maximum depending on their eligibility and anticipated credits. The mandatory money available from this statutory change was directed to the Pell Grant Program to maintain the maximum grant, to the benefit of all Pell Grant recipients. According to the Department's estimates, approximately $5 billion in grant aid to almost 2 million students annually would need to be made up through other sources. It is not clear if the option for a second Pell Grant in one year had a significant effect on completion rates, but this is another possible cost to some student recipients of a second Pell Grant.

The Department welcomes comments about the costs and benefits of the changes implemented in these interim final regulations.

As required by OMB Circular A-4 (available at www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf ), in the following table we have prepared an accounting statement showing the classification of the expenditures associated with the provisions of these interim final regulations. This table provides our best estimate of the changes in annual monetized transfers as a result of the statutory elimination of the two Pell Grant option as reflected in these interim final regulations. Expenditures are classified as transfers from recipients of a second Pell Grant to the Federal Government.

Executive Order 12866 and the Presidential memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make these regulations easier to understand, including answers to questions such as the following:

• Are the requirements in the regulations clearly stated?

• Do the regulations contain technical terms or other wording that interferes with their clarity?

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

• Would the regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example, § 690.64.)

• Could the description of the regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the regulations easier to understand? If so, how?

• What else could we do to make the regulations easier to understand?

Send any comments that concern how the Department could make these regulations easier to understand to the person listed in the ADDRESSES section of the preamble.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553) the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice and comment rulemaking when the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B).

There is good cause here for waiving rulemaking under the APA. Notice and comment to amend current § 690.64 is contrary to the public interest because, as discussed in more detail in the following paragraphs, delay in making this regulatory change will cause some students to lose some of their Pell Grant eligibility. Notice and comment to amend §§ 690.63, 690.65, and 690.67 are unnecessary because we are merely updating these sections to reflect statutory changes in Public Law 112-10 that prohibit a student from receiving two Pell Grants in a single award year.

The APA's rulemaking exception “ ‘Contrary to the public interest’ requires that public rule-making procedures shall not prevent an agency from operating.” Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 n.2 (9th Cir. 1992), quoting Levesque v. Block, 723 F.2d 175, 184 (1st Cir. 1983), quoting S. Rep. No. 752, 79th Cong., 1st Sess. 14 (1945), reprinted in Senate Judiciary Committee, 79th Cong., 2d Sess., Administrative Procedure Act Legislative History 185, 200 (1946). It “connotes a situation in which the interest of the public would be defeated by any requirement of advance notice, as when announcement of a proposed rule would enable the sort of financial manipulation the rule sought to prevent.”

Rulemaking is “unnecessary” when the agency is issuing a minor rule in which the public is not particularly interested. It applies in those situations in which “the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001), quoting U.S. Department of Justice, Attorney General's Manual on the Administrative Procedure Act 31 (1947) and South Carolina v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983).

The statutory change to prohibit a student from receiving two Pell Grants in a single award year results in unintended adverse effects on students under current § 690.64. Some students may lose Pell Grant eligibility under this provision. For example, under current § 690.64, in the summer of 2012, if a student had remaining eligibility from the 2011-2012 award year, he or she would not receive those funds. Instead, the student would receive funds under the 2012-2013 award year because the 2012-2013 Pell Grant would be greater. This would also reduce the amount of Pell Grant funds that would remain available to the student for the balance of the 2012-2013 award year.

Assuming a student had $1,500 in remaining eligibility for the 2011-2012 award year, the following table shows the student's eligibility under current § 690.64 and under the changes made by these interim final regulations:

In this example, under the current regulations, a student would not receive an additional $1,500 of the remaining Pell Grant award and would exhaust eligibility by the Spring of 2013. These interim final regulations avoid this result. The student receives an additional $1,500 of his or her remaining eligible Pell Grant award and has not exhausted his or her eligibility by the Spring of 2013. It is precisely to avoid this harm to students that we are waiving rulemaking for the change to § 690.64.

With respect to §§ 690.63, 690.65, and 690.67, because these interim final regulations merely reflect statutory changes and remove obsolete regulatory provisions, notice and comment are unnecessary. The amendments reflect the statutory change to the HEA that prohibits a student from receiving two Pell Grants in a single award year. Accordingly, the Secretary has good cause to waive rulemaking with respect to the removal of these regulatory provisions.

The APA also generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner. (5 U.S.C. 553(d)(3)). Because these interim final regulations merely reflect statutory changes and remove obsolete regulatory provisions and, in the case of new § 690.64, protect students from receiving reduced amounts of Pell Grant funds, there is good cause to make them effective on the day they are published.

These interim final regulations affect institutions that participate in Title IV, HEA programs, and individual Pell Grant recipients. The effect of the elimination of two Pell Grants in one year will depend on the extent students replace the funds from other sources or change their academic plans, the distribution of recipients of a second Pell Grant, and the alternative use of the funds. This Initial Regulatory Flexibility Analysis presents an estimate of the effect on small institutions of the statutory changes implemented through these interim final regulations. The Department welcomes comments and information related to this analysis.

These interim final regulations remove regulatory provisions related to the availability of two Pell Grants in one year to comply with section 1860(a)(2) of division B of the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (Pub. L. 112-10), which repealed section 401(b)(5) of the HEA under which an otherwise eligible student could receive more than one Federal Pell Grant in an award year.

These interim final regulations affect institutions that participate in Title IV, HEA programs and loan borrowers. The definition of “small entity” in the Regulatory Flexibility Act encompasses “small businesses,” “small organizations,” and “small governmental jurisdictions.” The definition of “small business” comes from the definition of “small business concern” under section 3 of the Small Business Act as well as regulations issued by the U.S. Small Business Administration (SBA). The SBA defines a “small business concern” as one that is “organized for profit; has a place of business in the U.S.; operates primarily within the U.S. or makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor * * *” “Small organizations” are further defined as any “not-for-profit enterprise that is independently owned and operated and not dominant in its field.” The definition of “small entity” also includes “small governmental jurisdictions,” which includes “school districts with a population less than 50,000.”

Data from the Integrated Postsecondary Education Data System (IPEDS) indicate that roughly 3,448 institutions representing approximately 63 percent of those institutions participating in the Federal student assistance programs meet the definition of “small entities” when all private nonprofit institutions are classified as small because none is dominant in the field. If the $7 million in revenue requirement were applied to private nonprofit institutions, the number of small entities would be reduced to 2,386 or 43.6 percent of institutions. Table 2 summarizes small institutions and their percent of AY 2008-2009 Pell Grant recipients and amounts by sector.

Using the distribution of Pell Grant recipients and amounts at small institutions from Table 2 and the Department's estimated two Pell Grant recipients and amounts, the estimated maximum cost to small institutions across all sectors for the period from 2011-2012 to 2015-2016 is approximately $1.67 billion. The estimated recipients and amounts by type of institution are summarized in Table 3. The amount of grant aid lost for any individual institution will depend on the extent the second Pell Grant option was utilized at that school. If distributed evenly across all small entities, with nonprofit institutions subject to the $7 million revenue requirement for a more uniform profile of institutions, an annual average of $150,000 would not be available from second Pell Grants in one award year. As discussed in the Summary of Potential Cost and Benefits section, much of this revenue will be available from other sources including the preservation of the maximum grant level in the Pell Grant Program, student earnings or savings, and increased student debt.

These interim final regulations do not impose any new reporting, record keeping, or other compliance requirements on institutions.

These interim final regulations are unlikely to conflict with or duplicate existing Federal regulations.

No alternatives were considered for the amendments to §§ 690.63(g)(1), 690.63(h), 690.65(c), 690.65(f), and 690.67 because these changes implement changes to the HEA enacted by Congress and the Department did not exercise discretion in developing these amendments. With respect to § 690.64, the Department could have left the current regulations in place. However, such an action would have led to potentially serious adverse effects on students, as described in the Waiver of Rulemaking and Delayed Effective Date section of this preamble.

These interim final regulations do not create any information collection requirements. With the removal of §§ 690.63(h) and 690.67 and the revision of § 690.64, due to the statutory changes, the paperwork burden associated with those sections are also removed. This change results in the discontinuation of information collection 1845-0098 and, therefore, the elimination of 109,605 burden hours associated with that collection.

This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

In accordance with section 411 of the General Education Provisions Act, 20 U.S.C. 1221e-4, the Secretary particularly requests comments on whether these regulations require transmission of information that any other agency or authority of the United States gathers or makes available.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT .

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For the reasons discussed in the preamble, the Secretary amends part 690 of title 34 of the Code of Federal Regulations as follows:

I. Background

The Maryland Slag Company (now MultiServ) operates a blast furnace slag processing plant at the Bethlehem Steel Corporation's (now ISG Sparrows Point) steel mill located in Sparrows Point, Baltimore County. Hot metal slag from Bethlehem Steel's blast furnace that is not processed by the Atlantic Cement Company's (now LaFarge North America) granulated slag cement plant is allowed to cool before being sent to the Maryland Slag processing facility. At the slag processing facility, slag is reduced in size with a crusher and segregated into different group sizes by a screening operation. The processed slag material is used as an aggregate material in road construction and parking lots. The slag processing facility is subject to the requirements under SIP-approved regulation COMAR 26.11.10.04B(1) which prohibits the discharge of fugitive particulate matter emissions from iron and steel production installations unless reasonably available control measures are employed to minimize emissions.

In 1980, the Atlantic Cement Company proposed to construct a slag cement processing facility within the confines of the Bethlehem Steel Corporation's Sparrows Point steel mill. At the time of the proposed project, the Sparrows point area was nonattainment for total suspended particulates (TSP). In order to construct the plant, the Atlantic Cement Company was required to secure particulate matter emission offsets. These offsets were obtained from the Maryland Slag Company and were formalized and made enforceable in the October 31, 1980 Consent Order. The October 31, 1980 Consent Order was approved as a SIP revision by EPA on September 8, 1981 (41 FR 44757).

On February 13, 2007, the Maryland Department of the Environment submitted a formal revision to its SIP. The SIP revision consists of a request to remove the Consent Order, issued on October 31, 1980, to the Maryland Slag Company (now MultiServ). The Consent Order provided particulate matter offsets from the Maryland Slag Company to the Atlantic Cement Company. The 1980 Consent Order is no longer necessary because the affected facilities are no longer located in a nonattainment area for TSP, and the Atlantic Cement Company (now Lafarge North America) was re-permitted in 2001 demonstrating compliance with the more stringent national ambient air quality standard for particulate matter with a diameter of 10 microns or less (PM 10 ). In addition, the Maryland Slag Company (now MultiServ) has reduced its annual PM emissions by reducing the material it processes from one million tons annually in 1980 to less than 100,000 tons annually today.

EPA is approving MDE's February 13, 2007 SIP revision to remove the October 31, 1980 Consent Order issued to the Maryland Slag Company (now MultiServ) because it is no longer required to satisfy any applicable Federal regulations and the Clean Air Act (CAA). EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on July 2, 2012 without further notice unless EPA receives adverse comment by June 1, 2012. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 2, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action to remove the 1980 Consent Order for the Maryland Slag Company may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Does this action apply to me?

The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

This technical correction reinstates previously established tolerances for the insecticide thiamethoxam in or on: Caneberry subgroup 13-07A at 0.35 parts per million (ppm); mustard, seed at 0.02 ppm; nut, tree, group 14 at 0.02 ppm; onion, dry bulb at 0.03 ppm; papaya at 0.40 ppm; and safflower, seed at 0.02 ppm. These tolerances were inadvertently deleted from the table in paragraph (a) under 40 CFR Part 180.565 in the final rule establishing new tolerances for thiamethoxam on several commodities that published in the Federal Register of March 2, 2012 (77 FR 12731) (FRL-9331-8).

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment, because the tolerances being reinstated in the table in paragraph (a) of 40 CFR 180.565 are permanent tolerances that were inadvertently omitted from that table in the course of a rulemaking that amended the table to establish several new tolerances. As part of that rulemaking, EPA prepared a revised table listing the current and new tolerances. In preparing the revised table, that contains tolerances on over 80 commodities, EPA inadvertently overlooked the tolerances identified in Unit II. It is clear on the face of the rulemaking document that the omission of the tolerances identified in Unit II was a typographical error because the document in no place mentions, or suggests, an intention of removing those tolerances. Public comment is unnecessary on an action to correct such a clear inadvertent error. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

This final rule corrects a technical error and does not otherwise change the requirements in the final rule. As a technical correction, this action is not subject to the statutory and Executive Order review requirements. For information about the statutory and Executive Order review requirements as they related to the final rule, see Unit IV. in the Federal Register of March 2, 2012.

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

Therefore, 40 CFR 180.565 is corrected as follows:

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0449 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before July 2, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0449, by one of the following methods:

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

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

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

In the Federal Register of July 20, 2011 (76 FR 43231) (FRL-8880-1), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1E7864) by IR-4, 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR 180.599 be amended by establishing tolerances for residues of the miticide acequinocyl, [2-(acetyloxy)-3-dodecyl-1,4-naphthalenedione] and its metabolite, 2-dodecyl-3-hydroxy-1,4-naphthoquinone, expressed as acequinocyl equivalents, in or on bean, succulent shelled at 0.15 parts per million (ppm); caneberry subgroup 13-07A at 4.5 ppm; cherry at 0.8 ppm; cowpea, forage at 9.0 ppm; cucumber at 0.15 ppm; melon subgroup 9A at 0.06 ppm; soybean, vegetable, succulent at 0.25 ppm; fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 1.6 ppm; and berry, low growing, subgroup 13-07G at 0.4 ppm. The petition additionally requested that 40 CFR 180.599 be amended by removing the established tolerances for residues of acequinocyl in or on grape at 1.6 ppm and strawberry at 0.4 ppm, as they will be superseded by inclusion in subgroup 13-07F and 13-07G, respectively. That notice referenced a summary of the petition prepared on behalf of IR-4 by Arysta LifeScience North America LLC, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has revised the proposed tolerance levels for several commodities. Additionally, the Agency has determined that tolerances should be established on the meat byproducts of livestock commodities and the previously established tolerances on the liver of livestock commodities should be removed. The Agency also determined that a tolerance is necessary on cowpea, hay. Finally, EPA determined that the proposed tolerance on cherry should be established as two tolerances on sweet and tart cherry. The reasons for these changes are explained in Unit IV.C.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Acequinocyl exhibits low acute toxicity via the oral, dermal and inhalation routes of exposure, as well as in primary eye and primary skin irritation studies. It is not a dermal sensitizer. Acequinocyl is a known Vitamin K antagonist; therefore, it is thought to produce adverse effects by disrupting the blood coagulation system, as indicated by increased prothrombin time, increased activated partial thromboplastin time, and internal hemorrhages.

In rat studies, including a subchronic oral toxicity study, a 28-day dermal toxicity study, and a chronic feeding/oncogenicity study, acequinocyl increased prothrombin and activated partial thromboplastin. Internal hemorrhages were observed in both a rat and rabbit developmental toxicity study, a mouse subchronic/chronic toxicity study, and in a 2-generation reproduction rat study. In a combined chronic toxicity/oncogenicity study in rats, enlarged eyeballs were observed. Hepatotoxicity in the mouse was evidenced by histopathology and increased liver enzymes.

In both rat and rabbit developmental toxicity studies, acequinocyl increased the number of resorptions noted. Developmental effects (i.e., resorptions) occurred at a dose that was higher than or the same as the dose that caused maternal toxicity. In the 2-generation reproduction toxicity study in the rat, there was no evidence of reproductive toxicity, though there were notable toxic effects observed in offspring that were not observed in adults including swollen body parts, protruding eyes, clinical signs, delays in pupil development and increased mortality occurring mainly after weaning.

There was no evidence of carcinogenic potential in either the rat or mouse carcinogenicity studies. There was also no concern for mutagenic activity as indicated by several mutagenicity studies. Therefore, acequinocyl is classified as “not likely to be carcinogenic to humans.”

Specific information on the studies received and the nature of the adverse effects caused by acequinocyl as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document: “Acequinocyl; Human-Health Risk Assessment for Proposed Section 3 Uses on Succulent Soybean Vegetable; Succulent Shelled Beans; Cowpea Forage; Caneberry Subgroup 13-07A; Melon Subgroup 9A; Cucumber, Cherry; Low-Growing Berry Subgroup 13-07G; and Small Fruit Vine Climbing, Except Fuzzy Kiwifruit, Subgroup 13-07F,” pp. 31-33 in docket ID number EPA-HQ-OPP-2011-0449.

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

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to acequinocyl, EPA considered exposure under the petitioned-for tolerances as well as all existing acequinocyl tolerances in 40 CFR 180.599. EPA assessed dietary exposures from acequinocyl in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for acequinocyl; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA utilized tolerance level residues and 100 percent crop treated (PCT) information for all registered and proposed uses. The assessment also used Dietary Exposure Evaluation Model (DEEM-FCID TM ) ver. 7.81 default processing factors, with the exception of those for grape juice and raisins.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that acequinocyl does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for acequinocyl. Tolerance level residues and 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for acequinocyl in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of acequinocyl. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of acequinocyl for chronic exposures for non-cancer assessments are estimated to be 6.69 parts per billion (ppb) for surface water and 0.0036 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 6.69 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Acequinocyl is currently registered for the following use by commercial applicators and homeowners that could result in residential exposure: Landscape ornamentals in residential and public areas. Residential handlers are expected to complete all tasks associated with the use of acequinocyl including mixing and loading (if needed), and application of acequinocyl with either a low-pressure hand wand or with a hose-end sprayer. EPA assessed potential short-term dermal and inhalation exposures to residential handlers from these scenarios. Residential handler exposure scenarios are considered to be short-term only, due to the infrequent use patterns associated with homeowner products. Postapplication exposure was not anticipated for the registered residential uses; therefore, a quantitative postapplication assessment was not conducted. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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

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

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

2. Prenatal and postnatal sensitivity. The acequinocyl toxicity database is adequate to evaluate potential increased susceptibility of infants and children, and includes developmental toxicity studies in rats and rabbits and a 2-generation reproduction study in rats. In the rat prenatal developmental toxicity study, developmental toxicity was indicated by increased resorptions and fetal variations. The developmental toxicity study in rabbits identified an increased number of complete resorptions. In the rat 2-generation reproductive toxicity study, both the maternal and reproductive toxicity LOAELs were not observed; however, the LOAEL for parental males was 58.9/69.2 mg/kg/day, based on hemorrhagic effects. The offspring systemic LOAEL was also 58.9 mg/kg/day. Though the offspring LOAEL was similar to that of parental males, the study noted increased qualitative susceptibility of pups (swollen body parts, protruding eyes, clinical signs, delays in pupil development and increased mortality). These effects occurred mainly after weaning.

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

i. The toxicity database for acequinocyl is complete except for immunotoxicity and acute and subchronic neurotoxicity testing. Recent changes to 40 CFR part 158 imposed new data requirements for immunotoxicity testing (OPPTS Guideline 870.7800) and acute and subchronic neurotoxicity testing (OPPTS Guideline 870.6200) for pesticide registration. The toxicology database for acequinocyl does not show any evidence of treatment-related effects on the immune system, and the overall weight-of-evidence suggests that this chemical does not directly target the immune system. Therefore, the Agency does not believe that conducting a functional immunotoxicity study will result in a lower POD than that currently in use for overall risk assessment, and additional UFs are not needed to account for a lack of this study.

Previously, EPA concluded that exposure to acequinocyl does not pose a neurotoxicity concern. Acequinocyl is a known Vitamin K antagonist; neurotoxic compounds of similar structure were not identified. While there is potential evidence of neurotoxicity or neuropathology in the 2-generation reproduction study as well as the rat subchronic oral toxicity study, these toxicities are not considered to be primary effects because they were observed at very high doses and in the presence of more severe systemic effects in both studies. The Agency does not believe that conducting the acute and subchronic neurotoxicity studies will result in a lower POD than that currently used for overall risk assessment; therefore, additional UFs to account for neurotoxicity are not necessary.

ii. There is no evidence of increased susceptibility of rat or rabbit fetuses to in utero exposure to acequinocyl. In the 2-generation reproduction study in rats, increased qualitative susceptibility was observed in offspring. However, EPA determined that the degree of concern is low for the noted effects because the effects were observed at the same doses as parental effects, and there is a clear NOAEL established which was used in endpoint selection.

iii. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to acequinocyl in drinking water. Residential uses are not expected to result in postapplication exposure to infants and children. These assessments will not underestimate the exposure and risks posed by acequinocyl.

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

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

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to acequinocyl from food and water will utilize 55% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of acequinocyl is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Acequinocyl is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to acequinocyl.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 2,500 for the general U.S. population, and 2,600 for females 13-49 years old. Because EPA's level of concern for acequinocyl is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, acequinocyl is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for acequinocyl.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, acequinocyl is not expected to pose a cancer risk to humans.

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

Morse Methods (Meth-135 and #Meth-133, revision #3), two high-performance liquid chromatography methods with tandem mass-spectroscopy detection (HPLC/MS/MS), are adequate enforcement methodologies available to enforce the tolerance expression.

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

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

The Codex has not established MRLs for acequinocyl.

Based on analysis of the residue field trial data supporting the petitions, EPA revised the proposed tolerances on berry, low growing, subgroup 13-07G from 0.4 ppm to 0.50 ppm; bean, succulent shelled from 0.15 ppm to 0.30 ppm; cowpea, forage from 9.0 ppm to 6.0 ppm; caneberry subgroup 13-07A from 4.5 ppm to 4.0 ppm; and melon subgroup 9A from 0.06 ppm to 0.15 ppm. The Agency revised these tolerance levels based on analysis of the residue field trial data using the Organization for Economic Co-operation and Development (OECD) tolerance calculation procedures. EPA also determined that the proposed tolerance on cherry at 0.8 ppm should be established as two separate tolerances on cherry, tart at 1.0 ppm; and cherry, sweet at 0.50 ppm because residues were generally higher in tart cherries than in sweet cherries. EPA determined that a tolerance is necessary on cowpea, hay at 18 ppm. Based on the results of the data supporting the cowpea tolerance, the appropriate tolerance for residues of acequinocyl in or on cowpea, forage is 6.0 ppm. Typically, forage is harvested before the plant has bloomed. Because it was not specified at what plant stage the product can be applied, EPA deemed it necessary to establish a tolerance on cowpea, hay as well. There is typically a 3-fold drying factor between forage and hay; therefore, EPA is establishing a tolerance for residues of acequinocyl in or on cowpea, hay at 18 ppm.

Finally, because cowpea forage and hay are significant feedstuff commodities for livestock, the maximum reasonable dietary burdens of acequinocyl were recalculated for acequinocyl using the Agency's most recent guidance on constructing reasonably balanced livestock diets. The Agency determined that the currently established tolerance level of 0.02 ppm for residues of acequinocyl in the fat of cattle, goat, horse, and sheep are still appropriate. Furthermore, the established 0.02 ppm tolerance level in the liver of cattle, goat, horse, and sheep is appropriate. However, EPA is revising the commodity definition to meat byproducts rather than liver in order to reflect the correct terminology. Therefore, EPA determined that tolerances should be established at 0.02 ppm for the meat byproducts of cattle, goat, horse, and sheep; and the established tolerances in the liver of cattle, goat, horse, and sheep should be removed.

Therefore, tolerances are established for residues of acequinocyl, including its metabolites and degradates, in or on the commodities in the table in paragraph (a) of § 180.599. Compliance with the tolerance levels specified in the table of paragraph (a) of § 180.599 is to be determined by measuring only the sum of acequinocyl [2-(acetyloxy)-3-dodecyl-1,4-naphthalenedione] and its metabolite, 2-dodecyl-3-hydroxy-1,4-naphthoquinone, calculated as the stoichiometric equivalent of acequinocyl, in or on soybean, vegetable, succulent at 0.25 ppm; berry, low growing, subgroup 13-07G at 0.50 ppm; fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 1.6 ppm; bean, succulent shelled at 0.30 ppm; cowpea, forage at 6.0 ppm; cowpea, hay at 18 ppm; caneberry subgroup 13-07A at 4.0 ppm; melon subgroup 9A at 0.15 ppm; cucumber at 0.15 ppm; cherry, tart at 1.0 ppm; cherry, sweet at 0.50; cattle, meat byproducts at 0.02 ppm; goat, meat byproducts at 0.02 ppm; horse, meat byproducts at 0.02 ppm; and sheep, meat byproducts at 0.02 ppm. This regulation additionally removes established tolerances in or on grape at 1.6 ppm; strawberry at 0.40 ppm; cattle, liver at 0.02 ppm; goat, liver at 0.02 ppm; horse, liver at 0.02 ppm; and sheep, liver at 0.02 ppm.

This final rule establishes tolerances under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply.

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

On February 16, 2011, the Board served a notice of proposed rulemaking (NPRM), in which it proposed to change, clarify, and update some of its existing regulations at 49 CFR 1152.29 regarding the use of railroad rights-of-way for rail banking and interim trail use under the Trails Act, 16 U.S.C. 1247(d). 1 The Board asked for comments on a proposed rule requiring the railroad and the trail sponsor jointly to notify the Board when a trail use agreement has been reached and to notify the Board of the exact location of the right-of-way subject to the interim trail use agreement by including a map and milepost marker information. We also proposed a rule to require parties to ask the Board to vacate the Certificate of Interim Trail Use (CITU) or Notice of Interim Trail Use (NITU) when an interim trail use agreement covers only a portion of the right-of-way and request a replacement CITU/NITU to cover the portion of the right-of-way subject to the trail use agreement. Finally, we proposed a rule to clarify that a substitute trail sponsor must acknowledge that interim trail use is subject to reactivation at any time and suggested other minor modifications to clarify and update the existing regulations at 49 CFR 1152.29. In addition to these specific proposals, we invited comments on what, if any, changes to the Trails Act rules would address concerns about the Board's regulations specifying what a state must do to satisfy the Trails Act's assumption-of-liability requirement, and whether the current methods of providing notice to adjoining landowners could be augmented by additional methods of indirect notice that take advantage of advances in technology without creating an undue burden on rail carriers.

Background. The Trails Act was enacted in 1968 to establish a nationwide system of recreation and scenic trails. National Trails System Act, Public Law. 90-543, § 2(b), 82 Stat. 919 (1968) (codified, as amended, at 16 U.S.C. 1241-1251). As originally enacted, it did not contain any special provisions for railroad rights-of-way. In 1983, however, Congress added a rail section, codified at 16 U.S.C. 1247(d), to advance two declared policies: preserving unused railroad rights-of-way for possible future rail use and promoting nature trails. See Preseault v. ICC, 494 U.S. 1, 17-18 (1990).

The enactment of the “Rails-to-Trails” provision followed a history of Congressional concern about the loss of rail corridors as a national transportation resource. See id. at 5; Birt v. STB, 90 F.3d 580, 582-83 (DC Cir. 1996). Under 16 U.S.C. 1247(d), the STB must “preserve established railroad rights-of-way for future reactivation of rail service” by prohibiting abandonment where a trail sponsor offers to assume managerial, tax, and legal responsibility for a right-of-way for use in the interim as a trail. Nat'l Wildlife Fed'n v. ICC, 850 F.2d 694, 699-702 (DC Cir. 1988). The statute provides that, if such interim use is subject to restoration or reconstruction for railroad purposes, the “interim use shall not be treated, for purposes of any law or rule of law, as an abandonment. * * *” 16 U.S.C. 1247(d). Instead, the right-of-way is “rail banked,” which means that the railroad (or any other approved rail service provider) may reassert control at any time in order to restore service on the line. 49 CFR 1152.29(c)(2), (d)(2); Birt, 90 F.3d at 583. 2 If a line is rail banked and designated for trail use, any reversion to adjoining landowners that might otherwise occur under state law upon abandonment is postponed. Preseault, 494 U.S. at 8; Birt, 90 F.3d at 583.

To invoke the Trails Act, a prospective trail sponsor must first file a request with the STB accompanied by a Statement of Willingness to assume responsibility for management, legal liability, and payment of taxes, and an acknowledgement that interim trail use is subject to restoration of rail service at any time. 49 CFR 1152.29(a), (d). If the railroad indicates its willingness to negotiate a rail banking/interim trail use agreement, the STB will issue a CITU (in an abandonment application proceeding) or a NITU (in an abandonment exemption proceeding) for the line. 3 49 CFR 1152.29(c)(1), (d)(1). The CITU/NITU permits parties to negotiate for a 180-day period (which can be extended by Board order) to reach a rail banking interim trail use agreement. Id.; Preseault, 494 U.S. at 7 n.5; Birt, 90 F.3d at 583.

The terms of any subsequently reached trail use agreement (including compensation issues related to the potential reactivation of rail service) are the product of private negotiations between the railroad and trail sponsor. The Board has never required that trail use agreements, or notice that the parties have even reached an agreement, be submitted to the agency. Ga. Great S. Div.—Aban. & Discontinuance Exemption—Between Albany & Dawson, in Terrell, Lee, & Dougherty Counties, Ga., 6 S.T.B. 902, 907 (2003).

If the parties reach an agreement, the CITU/NITU automatically authorizes rail banking/interim trail use. Preseault, 494 U.S. at 7 n.5. Without further action from the STB, the trail sponsor may then assume management of the right-of-way, subject to the right of a railroad to reassert control of the property for restoration or reconstruction of rail service. 49 CFR 1152.29(c)(2), (d)(2); Birt, 90 F.3d at 583. If, on the other hand, no rail banking/interim trail use arrangement is reached, then upon expiration of the CITU/NITU 180-day negotiation period (and any extension thereof), the CITU/NITU authorizes the railroad to “exercise its option to fully abandon” the line by consummating the abandonment, without further action by the agency, see Birt, 90 F.3d at 583, provided that there are no unmet conditions imposed on the abandonment authority that must be satisfied. See 49 CFR 1152.29(c)(1) and (d)(1); Consummation of Rail Line Abans. That Are Subject to Historic Pres. & Other Envtl. Conditions, EP 678, slip op. at 3-4 (STB served Apr. 23, 2008); Puget Sound & Pacific R.R.—Aban. Exemption—in Grays Harbor Cnty., Wash., AB 1023 (Sub-No. 1X) (STB served Sept. 13, 2011). During the negotiating period, the railroad is authorized to discontinue service and salvage track materials from the line, as such actions are fully consistent with rail banking/interim trail use. Preseault, 494 U.S. at 7 n.5; Birt, 90 F.3d at 583, 586.

A rail banking/interim trail use arrangement is subject to being cut off at any time for the reinstitution of rail service. 49 CFR 1152.29(c)(2), (d)(2). A rail-banked line is not abandoned, but rather remains part of the national rail system, albeit temporarily unused for railroad operations. Thus, if and when a railroad wishes to restore rail service on all or part of the property, it may request that the CITU/NITU be vacated to permit reactivation of the line for continued rail service. See, e.g., Ga. Great S., 6 S.T.B. at 906.

Alternatively, rail banking/interim trail use may be terminated by the trail sponsor, pursuant to any applicable terms of the privately negotiated trail use agreement. In that instance, upon notice from the trail sponsor that it is terminating interim trail use, the Board will issue a decision vacating the CITU/NITU and permitting immediate abandonment for the involved portion of the right-of-way, thereby allowing, but not requiring, the railroad to consummate abandonment, subject to compliance with any conditions that must be satisfied. 49 CFR 1152.29(c)(2) and (d)(2); see 49 CFR 1152.29(e)(2).

Rail banking/interim trail use authorization also may be transferred from one trail sponsor to another. 49 CFR 1152.29(f). To effect a transfer, the existing and proposed trail sponsors jointly submit to the Board a copy of the governing CITU/NITU, a statement of the proposed trail sponsor's willingness to assume the management, liability, and tax responsibilities for the trail, and the date on which responsibility for the right-of-way is to transfer to the new trail sponsor. Id. The Board will then reopen the abandonment proceeding to vacate the existing CITU/NITU and replace it with a new CITU/NITU reflecting the new trail sponsor. Id.

The STB's role under the Trails Act is limited and largely ministerial. Citizens Against Rails-to-Trails v. STB, 267 F.3d 1144, 1151-52 (D.C. Cir. 2001) ( CART ); Goos v. ICC, 911 F.2d 1283, 1295 (8th Cir. 1990) (agency has “little, if any, discretion to forestall a voluntary agreement to effect a conversion to trail use”). The STB plays no part in the negotiations between trail sponsors and railroads, nor does it analyze, approve, or set the terms of rail banking/interim trail use agreements. Ga. Great S., 6 S.T.B. at 907. The Board does not “regulate activities over the actual trail, and [has] no involvement in the type, level, or condition of the trail. * * *” Id. Moreover, the Board has no specific fitness or qualification test for trail sponsors; it requires only the Statement of Willingness from the trail sponsor to assume liability and to pay taxes, and the acquiescence of the railroad in rail banking. The Board has the authority to terminate rail banking/interim trail use if it determines that the trail sponsor does not have the ability to continue to meet the management, tax, and liability conditions of interim trail use. See 49 CFR 1152.29(a)(3); Jost v. STB, 194 F.3d 79, 89-90 (D.C. Cir. 1999).

The STB retains jurisdiction over a rail line throughout the CITU/NITU negotiating period, any period of rail banking/interim trail use, and any period during which rail service is restored. It is only upon a railroad's lawful consummation of abandonment authority that the Board's jurisdiction ends. See 16 U.S.C. 1247(d); Preseault, 494 U.S. at 6. At that point, the right-of-way may revert to reversionary landowner interests, if any, pursuant to state law. Preseault, 494 U.S. at 5, 8.

Discussion. Pursuant to the procedural schedule set forth in the NPRM, comments were filed by the Association of American Railroads (AAR), Maryland Transit Administration (MTA), Madison County Transit (MCT), and the Rails-to-Trails Conservancy (RTC). On May 12, 2011, AAR filed a reply to the comments submitted by MTA, MCT, and RTC. The comments are summarized in the discussion below.

Sovereign Immunity and the Statutory Assumption of “Full Liability” Requirement. The plain language of 16 U.S.C. 1247(d) requires states and political subdivisions, as well as qualified private organizations, to “assume full responsibility for management” of the right-of-way, for “any legal liability arising out of such transfer or use” of a right-of-way for trail purposes, and for “the payment of any and all taxes that may be levied or assessed against such rights-of-way.” Thus, the trail sponsor must agree to take complete responsibility for whatever legal liability might arise due to interim trail use.

This acceptance-of-liability requirement might seem potentially at odds with the statutory language expressly allowing states and political subdivisions to be trail sponsors, given that such entities often have some form of immunity from legal liability. In 1986, the ICC resolved this conundrum by adopting a rule allowing an entity with legal immunity to satisfy the statutory requirement by filing a Statement of Willingness agreeing either to “assume full responsibility” or to indemnify the railroad against any potential liability. See 49 CFR 1152.29(a)(2), (3).

Questions have been raised about the ability of state entity trail sponsors to file the required Statements of Willingness to indemnify the railroad. 4 Thus, in the NPRM we requested comments from the public on what, if any, changes in our Trails Act rules could accommodate concerns about the indemnity requirement in our current rules, given the plain language of the statute. 5

MTA, RTC, MCT, and AAR filed comments addressing this issue. MTA argues that the Board's current regulations fail to acknowledge state law limitations that may prevent an entity from fully satisfying a claim of liability or indemnity at the time such a claim arises because the state must first obtain legislative authority to obligate funds. MTA proposes a qualified Statement of Willingness that would allow a trail sponsor to express willingness to assume full responsibility for any legal liability arising out of the transfer or use of the ROW, “to the fullest extent allowed under applicable state law.”

RTC and MCT contend that the indemnification language in the Statement of Willingness is not statutorily required. MCT also notes that, in most instances, the state sponsor purchases all of the railroad's interests in the right-of-way. It claims that, by accepting the deed, the state sponsor, as the new owner, automatically assumes full responsibility for taxes, legal liability, and management. Thus, MCT states, the issue of limitations on state indemnification only arises in the infrequent instances where the railroad retains a fee interest and merely leases or allows use of its property for a trail. RTC further notes that there are ways in which a governmental entity can assume full responsibility without indemnifying railroads. For instance, it asserts that many states have enacted recreational use statutes that protect railroads from liability arising from recreational trail use. RTC and MTA urge the Board to refrain from interfering with the private contractual arrangements between trail sponsors and railroads and suggest that the Board should defer to the parties to negotiate an agreement that adequately protects railroads from any additional liability resulting from interim trail use.

AAR opposes any changes that would permit a state entity to qualify its Statement of Willingness. AAR concurs in the Board's view in the NPRM that the plain language of 16 U.S.C. 1247(d) specifically requires a trail sponsor to “assume full responsibility” for any legal liability arising out of the interim trail use—or, as permitted by the Board's regulations, to indemnify the railroad against any potential liability, which is the functional equivalent. Thus, it points out that, even if a qualified Statement of Willingness were to be acceptable to the parties, the arrangement would not comply with the express requirements of the Trails Act. AAR also notes that the Board's current rule is consistent with the legislative history, which makes it clear that one of the policies of the Trails Act is to encourage railroads to enter into Trails Act arrangements by ensuring that they will be protected from potential liability during the period of interim trail use. 6 It disagrees with MCT's argument that, where the Trails Act agreement involves a sale or a donation of the railroad's property, state government entities with immunity can satisfy the hold harmless requirement simply by accepting title. AAR explains that there is still a need to protect an abandoning railroad from potential legal liability and taxes where the transfer of the railroad's interest is by sale or donation. That is because the railroad often may not be the actual owner of the right-of-way, but may be only the holder of a railroad easement that the railroad is permitting the trail sponsor to use as a trail on an interim basis, subject to the railroad's right to reactivate rail service pursuant to the existing railroad easement should circumstances warrant.

We will not adopt MTA's proposed qualification to the Statement of Willingness. The proposal is inconsistent with the plain language of § 1247(d), which specifically requires that parties assume full responsibility for legal liability, taxes, and management of the right-of-way. MTA's proposed language potentially limits the liability of the trail sponsor and thus raises the possibility of a carrier being legally liable for activities related to interim trail use, depending on state law provisions. This would be contrary to the express statutory requirement that every trail sponsor agree to accept “full responsibility” for any legal liability arising out of interim trail use. Further, attempting to determine whether the provisions of a given state's laws conform to the requirements of § 1247(d) would be inconsistent with the Board's generally ministerial role under the Trails Act and Congress' intent to adjudicate rail abandonments expeditiously. Accordingly, for the reasons discussed above and in Chesapeake, with one exception, 7 we do not here make any changes to the Statement of Willingness rules at 49 CFR 1152.29(a)(2), (3), other than the minor clarifying changes proposed in the NPRM. 8

Notice of Trail Use Agreement: In the NPRM, we proposed requiring parties to notify the Board when an interim trail use agreement has been reached through a notice jointly filed by the railroad and trail sponsor. The notice would require parties to include a map and specific description, by milepost markers, of the right-of-way covered by the trail use agreement, a certification that the trail use agreement requires the user to fulfill the obligations set forth at 49 CFR 1152.29(a)(2), and a statement as to whether the agreement covers the entire right-of-way under the CITU/NITU or only a portion of that right-of-way.

AAR and MCT support a notification requirement, and RTC does not object to it. RTC and MCT, however, request that the Board clarify what constitutes an “agreement” and address whether it refers to an agreement in principle ( i.e., an agreement to agree), a definitive contract for sale (subject to customary due diligence or financial conditions), or a formal conveyance of a property interest. MCT also opposes the requirement that the notice be jointly filed, stating that the extra level of coordination required for the joint filing is unnecessary.

We will adopt the rule as proposed in the NPRM. We do not find it necessary to define what constitutes an agreement because the involved parties can themselves determine when an agreement has been reached. Requiring parties to file the notice jointly will ensure that parties have reached an agreement and remove any uncertainty as to which party is responsible for filing the notice. Also, the joint-filing requirement is not burdensome. In lieu of a filing under the signatures of both parties, one party may file the notice and indicate that it has been authorized to express the other party's consent.

Modifying/vacating a CITU/NITU: The Board proposed that, if a trail sponsor and rail carrier reach an interim trail use agreement that applies to less of the right-of-way than is covered by the CITU/NITU, the notice of trail use agreement must also include: (1) a request to vacate the CITU/NITU, thus permitting abandonment of the portion of the right-of-way not subject to the interim trail use agreement; and (2) a request for a replacement CITU/NITU that covers only the portion of the right-of-way subject to the interim trail use agreement.

MCT has no objection to this proposed rule. AAR believes that the proposed rule is unnecessarily cumbersome and fails to reflect the fully self-executing nature of the CITU/NITU (that is, if parties are unable to reach a trail use agreement, the CITU/NITU automatically allows for a carrier to exercise its right to abandon the portion of the line not included in the trail use agreement once the negotiation period has expired). Also, AAR is of the view that the new notice of interim trail use agreement requirement would address the Board's need for information on any portion of the ROW that the carrier is authorized (and actually intends) to abandon under the original CITU/NITU.

We will adopt the rule as proposed. As explained in the NPRM, the new rule will promote clarity and ensure that the Board has accurate information about any portions of the right-of-way that will not be rail banked, particularly if a trail use agreement for a portion of the right-of-way is reached before the end of the negotiating period. The new rule will not impose any appreciable burden on the parties.

Providing Additional Notice to Landowners: In the NPRM, we explained that the Board and the ICC previously declined to require abandoning railroads to give actual notice to adjacent landowners following issuance of a CITU/NITU, because providing actual notice would not be practical. NPRM at 7-8. 9 However, we specifically requested comments on whether there are additional means of providing notification of CITU/NITUs to landowners that could be used to augment the current method of newspaper and Federal Register notice that could take advantage of advances in technology but do not create an undue burden on railroads.

No commenters proposed changes to the Board's current notice requirements (beyond supporting providing notice of trail use agreements). Moreover, both AAR and MCT noted that in addition to the Board's longstanding notice requirements, all filings and decisions are now posted on the Board's electronic Web site, which improves indirect notice to adjoining landowners of the status of abandonment proposals and interim trail use requests. As a result, we will not make any changes to our rules beyond those proposed in the NPRM.

In the NPRM, the Board clarified that: (1) Parties need not file a request to extend the time for filing the notice of abandonment consummation when legal or regulatory conditions (including a CITU/NITU) remain in effect that bar consummation of abandonment until the conditions have been satisfied or removed; and (2) a substitute trail sponsor must affirmatively acknowledge that the continued interim trail use is subject to possible future restoration of the right-of-way and reactivation of rail service. The Board also proposed to clarify and update certain other language in 49 CFR 1152.29. 10 Specifically, we proposed to modify the language in 49 CFR 1152.29(a)(2), (a)(3), (c)(2), and (d)(2), so that the wording more closely conforms to the language of the Trails Act. We also proposed minor modifications to the Statement of Willingness in 49 CFR 1152.29(a)(3) to describe more accurately the responsibilities of an interim trail sponsor. In addition, we proposed to eliminate the reference to “NERSA abandonment proceedings” in 49 CFR 1152.29(c), because NERSA is no longer in effect. We further proposed to modify the language in 49 CFR 1152.29(c)(1) and (d)(1), to clarify that the Board will issue a CITU/NITU for the portion of the right-of-way as to which both parties are willing to negotiate interim trail use, rather than the portion “to be covered by the agreement,” as what the agreement may ultimately cover is unknown at that time. Finally, we proposed to modify the language in 49 CFR 1152.29(c)(2) to make clear that a trail sponsor may choose to terminate interim trail use over only a portion of the right-of-way covered by the trail use agreement, while continuing interim trail use over the remaining portion of the right-of-way covered by the trail use agreement. We received no opposition to these clarifications and thus will adopt the clarifications as proposed.

Finally, MCT submitted comments regarding service reactivation over rail banked lines and compensation. However, we specifically stated in the NPRM that we would not address reactivation issues in this proceeding. Accordingly, we will not discuss those comments here.

Applicability of New Rules. As stated in the NPRM, when these rules become effective, they will be applicable both to new CITUs/NITUs and cases where the CITU/NITU negotiating period has not yet expired.

Paperwork Reduction Act. In our NPRM, we described the proposed collection of information, and we noted that we had submitted this information to the Office of Management and Budget (OMB) for review under the Paperwork Reduction Act (PRA), 44 U.S.C. 3507(d) and OMB regulations at 5 CFR 1320.11.

By notice dated May 6, 2011, OMB assigned to this information collection OMB Control No. 2140-0017. We are today submitting this final rule to OMB for approval. Once approval is received, we will publish a notice in the Federal Register to announce the expiration date assigned by OMB. The display of a currently valid OMB control number for this collection is required by law. Under the PRA and 5 CFR 1320.8, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.

In our NPRM, we specifically sought comments on the proposed collection regarding: (1) Whether the particular collection of information described above is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate.

The comments received in response to our NPRM give us no reason to modify the regulations as proposed. No party has challenged our burden estimates or proposed a way to further minimize the burden on respondents from collection of the information and still provide the required information. 11

Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, 5 U.S.C 601-612, generally requires a description and analysis of rules that would have significant economic impact on a substantial number of small entities. Pursuant to 5 U.S.C. 605(b), we reaffirm our finding in the NPRM that our action in this proceeding will not have a significant impact on a substantial number of small entities.

This action will not significantly affect either the quality of the human environment or the conservation of energy resources.

For the reasons set forth in the preamble, the Surface Transportation Board amends part 1152 of title 49, chapter X, of the Code of Federal Regulations as follows:

The ocean salmon fisheries in the EEZ off Washington, Oregon, and California are managed under a “framework” fishery management plan entitled the Pacific Coast Salmon Fishery Management Plan (Salmon FMP). Regulations at 50 CFR part 660, subpart H, provide the mechanism for making preseason and inseason adjustments to the management measures, within limits set by the Salmon FMP, by notification in the Federal Register .

The management measures for the 2012 and pre-May 2013 ocean salmon fisheries that are implemented in this final rule were recommended by the Pacific Fishery Management Council (Council) at its April 1 to 6, 2012, meeting.

The Council announced its annual preseason management process for the 2012 ocean salmon fisheries in the Federal Register on December 20, 2011 (76 FR 78904), and on the Council's Web site at ( www.pcouncil.org ). This notice announced the availability of Council documents as well as the dates and locations of Council meetings and public hearings comprising the Council's complete schedule of events for determining the annual proposed and final modifications to ocean salmon fishery management measures. The agendas for the March and April Council meetings were published in the Federal Register and posted on the Council's Web site prior to the actual meetings.

In accordance with the Salmon FMP, the Council's Salmon Technical Team (STT) and staff economist prepared four reports for the Council, its advisors, and the public. All four reports were posted on the Council's Web site and otherwise made available to the Council, its advisors, and the public upon their completion. The first of the reports, “Review of 2011 Ocean Salmon Fisheries,” was prepared in February when the scientific information necessary for crafting management measures for the 2012 and pre-May 2013 ocean salmon fishery first became available. The first report summarizes biological and socio-economic data for the 2011 ocean salmon fisheries and assesses how well the Council's 2011 management objectives were met. The second report, “Preseason Report I Stock Abundance Analysis and Environmental Assessment Part 1 for 2012 Ocean Salmon Fishery Regulations” (PRE I), provides the 2012 salmon stock abundance projections and analyzes the impacts on the stocks and Council management goals if the 2011 regulations and regulatory procedures were applied to the projected 2012 stock abundances. Completing the PRE I is the initial step in evaluating the full suite of preseason alternatives.

Following completion of the first two reports, the Council met in Sacramento, CA from March 2 to 7, 2012, to develop 2012 management alternatives to propose to the public. The Council proposed three alternatives for commercial and recreational fisheries management for analysis and public comment. These alternatives consisted of various combinations of management measures designed to protect weak stocks of coho and Chinook salmon, and to provide for ocean harvests of more abundant stocks. After the March Council meeting, the Council's STT and staff economist prepared a third report, “Preseason Report II Proposed Alternatives and Environmental Assessment Part 2 for 2012 Ocean Salmon Fishery Regulations” (PRE II), which analyzes the effects of the proposed 2012 management alternatives.

The Council sponsored and held public hearings to receive testimony on the proposed alternatives on March 26, 2012, in Westport, WA and Coos Bay, OR; and on March 27, 2012, in Eureka, CA. The States of Washington, Oregon, and California sponsored meetings in various forums that also collected public testimony, which was then presented to the Council by each state's Council representative. The Council also received public testimony at both the March and April meetings and received written comments at the Council office.

The Council met from April 1 to 6, 2012, in Seattle, WA to adopt its final 2012 recommendations. Following the April Council meeting, the Council's STT and staff economist prepared a fourth report, “Preseason Report III Analysis of Council-Adopted Management Measures for 2012 Ocean Salmon Fisheries” (PRE III), which analyzes the environmental and socio-economic effects of the Council's final recommendations. After the Council took final action on the annual ocean salmon specifications in April, it published the recommended management measures in its newsletter and also posted them on the Council Web site ( www.pcouncil.org ).

PRE I, PRE II, and PRE III collectively comprise the Environmental Assessment (EA) for this action, and analyze environmental and socioeconomic effects under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.). The EA and its related Finding of No Significant Impact (FONSI) are posted on the NMFS Northwest Region Web site ( www.nwr.noaa.gov ).

The Council adopted Amendment 16 to the Salmon FMP in 2011 (76 FR 81852, December 29, 2011). Amendment 16 brought the Salmon FMP into compliance with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) as amended in 2007, and the corresponding revised National Standard 1 Guidelines (NS1Gs) to end and prevent overfishing. As modified by Amendment 16, the FMP identifies stocks that are in the fishery, including stock complexes and indicator stocks for those complexes, establishes status determination criteria (SDC), and establishes formulas for specifying overfishing limits (OFLs), acceptable biological catch (ABC), and annual catch limits (ACLs). Amendment 16 also added to the FMP “de minimis” fishing provisions that allow for low levels of fishing impacts on specified stocks that are at low levels of abundance. Management measures for 2012 are the first developed under Amendment 16.

In 2012, NMFS set annual catch limits (ACLs) for the first time for two stocks: Sacramento River Fall Chinook (SRFC) and Klamath River Fall Chinook (KRFC). These stocks are indicator stocks for the Central Valley Fall Chinook complex and the Southern Oregon/Northern California Chinook complex, respectively. The Far North Migrating Coastal Chinook complex includes a group of Chinook salmon stocks that are caught primarily in fisheries north of Cape Falcon, Oregon and other fisheries that occur north of the U.S./Canada Border. No ACL is set for these stocks because they are managed according to the Pacific Salmon Treaty with Canada (PST). Other Chinook salmon stocks caught in fisheries north of Cape Falcon are ESA-listed or hatchery produced. Coho stocks are either ESA-listed, hatchery produced, or managed under the PST.

ACLs for SRFC and KRFC are escapement based, which means they establish a number of adults that must escape the fisheries to return to the spawning grounds to maintain healthy stocks. They are set based on the annual abundance projection and a fishing rate reduced to account for scientific uncertainty. The abundance forecasts for 2012 are described in more detail below in the “Resource Status” section of this final rule. For SRFC in 2012, the overfishing limit (OFL) is S OFL = 819,400 (projected abundance) multiplied by F MSY (.78) or 180,260 returning spawners. ABC is 819,400 multiplied by F ABC (F MSY reduced for scientific uncertainty = .70) or 245,820. ACL is set equal to ABC. For KRFC in 2012, OFL is 269,649 (abundance projection) multiplied by F MSY (.71), or 78,198 returning spawners. ABC is 269,649 multiplied by F ABC (F MSY reduced for scientific uncertainty = .68) or 86,200 returning spawners. As with SRFC, the ACL for KRFC is its ABC.

As explained in more detail below under “Resource Status,” fisheries south of Cape Falcon, which are the fisheries that impact SRFC and KRFC, are constrained by impact limits necessary to protect ESA-listed salmon stocks, including California Coastal Chinook and Sacramento River Winter Chinook. For 2012, the large KRFC and SRFC abundance projections, in combination with the constraints for ESA-listed stocks, are expected to result in escapements for SRFC and KRFC that exceed ACL escapement levels.

On March 2, 2010, NOAA Fisheries notified the Council that SRFC was overfished, having failed to meet its conservation objective for three consecutive years (2007-2009). In response, the Council was required to develop a rebuilding plan within two years (75 FR 28564, May 21, 2010). In December 2011, NOAA Fisheries approved Amendment 16 to the FMP, which established new status determination criteria, consistent with National Standard 1 Guidelines. Under the new criteria, SRFC are determined to be overfished when the 3-year geometric mean spawning escapement falls below the minimum stock size threshold (MSST) of 91,500 adult natural and hatchery spawners, and the stock is determined to be subject to overfishing if the fishing mortality rate exceeds the maximum fishing mortality threshold (MFMT) of 78 percent. Under the criteria of Amendment 16, SRFC continue to meet the definition of overfished. Therefore, the STT presented and the Council approved rebuilding alternatives for public review at its March 2012 meeting. The Council adopted its rebuilding plan at its April 2012 meeting.

In the amended FMP, the default criterion for rebuilt status is when the 3-year geometric mean spawning escapement exceeds maximum sustainable yield spawning escapement (S MSY ). For SRFC, S MSY is defined as 122,000 adult natural and hatchery spawners. On April 5, 2012, based on the recommendation of the STT, the Council adopted the FMP default rebuilt criterion for SRFC, whereby the stock is rebuilt when the 3-year geometric mean spawning escapement exceeds S MSY . As this rebuilt criterion is based on S MSY, the escapement level that is intended to maximize yield on a continuing basis, the STT did not recommend modifying the default rebuilt criterion.

Given the strong abundance projections for SRFC in 2012, and the resulting likelihood that SRFC will be rebuilt in 2012, the STT recommended adopting the existing FMP control rule for managing SRFC until the stock is rebuilt. The existing control rule sets a maximum exploitation rate of 70 percent at high abundance, an annual management target of 122,000 adult natural and hatchery spawners at moderate abundance, and de minimis fishing rates of no more than 25 percent at low abundance (see FMP section 3.3.6 for specifics of the control rule). The STT presented the Council with two additional rebuilding alternatives: (1) A minimum escapement target of 180,000 adult spawners, the upper end of the conservation objective goal range, and the existing maximum fishing rate of .70; or (2) a maximum fishing rate of .65 and the existing minimum escapement target of 122,000. These alternatives, in addition to the STT's recommended rebuilding plan, were analyzed by the STT, and this analysis is included in the EA.

The 2012 SRFC abundance forecast is 819,400 adults. Given this large abundance, the STT determined that SRFC are expected to rebuild in 2012 regardless of which alternative rebuilding plan is used. Abundance of 819,400 reduced by the F ACL of 70 percent should result in 245,820 adult natural and hatchery spawners. With the anticipated escapement in 2012 under the STT's recommended plan, and given the spawning escapements in 2010 and 2011, the 3-year geometric mean spawning escapement would be 151,903. Based on the above-described rebuilt criterion, the stock would then be rebuilt by the end of 2012. The alternative rebuilding strategies would have resulted in higher escapement projections for 2012, but all of the strategies resulted in the same time to rebuild—one year. As discussed in more detail below, conservation constraints for other stocks will limit Chinook harvests beyond that required under the rebuilding plan, resulting in an anticipated escapement of 455,800 adult hatchery and natural spawners. The Scientific and Statistical Committee (SSC) agreed with the recommendations of the STT, and the Council adopted the FMP default control rule for managing SRFC as the rebuilding plan. In consideration of the 2012 abundance forecast, the Council also adopted a rebuilding period of one year (the shortest time possible given that status determinations are made annually for salmon). This rebuilding plan is consistent with the mandate in the MSA that a rebuilding plan for an overfished fishery “specify a time period for rebuilding the fishery that shall * * * be as short as possible” (16 U.S.C. 1854(e)(4)(A)). The management measures recommended by the Council are consistent with this rebuilding plan.

Fisheries south of Cape Falcon, OR are limited in 2012 primarily by the status of Sacramento River winter Chinook salmon and California Coastal Chinook salmon, which are both evolutionarily significant units (ESUs) listed under the Endangered Species Act (ESA). Fisheries north of Cape Falcon are limited in 2012 primarily by Lower Columbia River Chinook salmon and Lower Columbia River coho salmon, stocks which are also listed under the ESA, and by Thompson River coho from Canada. At the start of the preseason planning process for the 2012 management season, NMFS provided a letter to the Council, dated February 27, 2012, summarizing its ESA consultation standards for listed species as required by the Salmon FMP. The Council's recommended management measures comply with NMFS ESA consultation standards and guidance for those listed salmon species that may be affected by Council fisheries. In many cases, the recommended measures are more restrictive than NMFS's ESA requirements.

The SRFC stock is the major contributing stock to ocean Chinook salmon fisheries off Oregon and California and the indicator stock for the Central Valley Fall Chinook stock complex. The STT uses the Sacramento Index (SI) to forecast abundance of SRFC. The SI forecast has exceeded the postseason estimate of SRFC abundance for three consecutive years (2009-2011). Each of these years has been characterized by the most recent jack  1 escapement estimate (year t-1) exceeding the jack escapement estimate from the previous year (year t-2) by a large margin. This is the case again for the 2012 SI forecast, where the 2011 jack escapement estimate is the largest on record (85,719 jacks).

For a variety of potential reasons, including the increasing trend in jack escapement, the relationship between jack escapement and the SI for years 2009-2011 exhibits a markedly different pattern than what existed for years prior to 2009. To address this pattern and the related preseason overestimation of SRFC abundance in recent years, the STT determined it was appropriate to limit the data set used in calculating the 2012 SI to data from 2009-2011, rather than the full 1990-2011 data set. The SSC reviewed the STT's recommendation and concurred. The adopted 2012 SI forecast, based on data from 2009-2011, is 819,400 (a much more conservative projection than the SI forecast of 2.2 million that would result from using the full 1990-2011 data set). The Council received comments from the San Joaquin Tributaries Authority (SJTA) concerning the SRFC forecast and potential for bias in the SI. Based on the STT's modifications to applying the model in 2012, explained above, the Council followed the recommendations of the STT and SSC and adopted the SRFC abundance forecast.

The SJTA also commented that the alternatives for the management measures were developed without considering Federal and California State laws mandating the doubling of natural production of salmon in the Central Valley. However, the Central Valley Improvement Act (CVPIA) does not tie achievement of the doubling goal to annual abundance of SRFC; rather, it is tied to average Chinook production from 1967-1991. The CVPIA does not purport to address fishing impacts on Chinook, but states its purposes are to protect, restore, and enhance fish habitat in the Central Valley and to address impacts of the Central Valley project on fish and associated habitats. The CVPIA does not call for any measures addressing fishery impacts. In fact, the SJTA's March 26, 2012 letter to the Council indicates that the United State's Fish and Wildlife Service measures natural production based upon estimates that include ocean harvest. In short, the CVPIA does not appear to apply to managing ocean fisheries, and is not considered “other applicable law” under the MSA. California Fish and Game Code section 6902 likewise does not address ocean fishery impacts.

In 2012, NMFS consulted under ESA section 7 and provided guidance to the Council regarding the effects of Council area fisheries on the Sacramento River winter Chinook salmon ESU. NMFS completed a Biological Opinion that includes a reasonable and prudent alternative (RPA) to avoid jeopardizing the continued existence of this ESU. The RPA includes management-area-specific fishing season openings and closures, and minimum size limits for both commercial and recreational fisheries, as developed in the 2010 Biological Opinion. The 2012 Biological Opinion adds a second component based on a new abundance-based framework, which will supplement the above management restrictions with maximum allowable impact rates that will apply when abundance is low. The Council met the requirements of this new RPA in their recommended 2012 management measures.

NMFS last consulted under ESA section 7 regarding the effects of Council area fisheries on California Coastal Chinook salmon in 2005. Klamath River fall Chinook are used as a surrogate to set limits on ocean harvest impacts. The Biological Opinion requires that management measures result in an age-4 ocean harvest rate of no greater than 16%. The Council's recommended 2012 management measures meet this objective.

In 2012, NMFS consulted under ESA section 7 and provided guidance to the Council regarding the effects of Council area fisheries on the Lower Columbia River (LCR) Chinook salmon ESU. NMFS completed a Biological Opinion that applies to fisheries beginning in 2012, which concludes that the proposed 2012 fisheries, if managed consistent with the terms of the Biological Opinion, are not likely to jeopardize the continued existence of LCR Chinook. The LCR Chinook salmon ESU is comprised of a spring component, a “far-north” migrating bright component, and a component of north migrating tules. The bright and tule components both have fall run timing. There are twenty-one separate populations within the tule component of this ESU. Unlike the spring or bright populations of the ESU, LCR tule populations are caught in large numbers in Council fisheries, as well as fisheries to the north and in the Columbia River. Therefore, this component of the ESU is the one most likely to constrain Council fisheries in the area north of Cape Falcon, Oregon. The total exploitation rate on tule populations has been reduced from 49 percent in 2006, to 42 percent in 2007, 41 percent in 2008, 38 percent in 2009 and 2010, and then to 37 percent in 2011. Under the 2012 Biological Opinion, NMFS will use an abundance based management (ABM) framework for the first time to set annual exploitation rates for LCR tule Chinook salmon below Bonneville Dam. This framework was developed by an ad hoc Tule Chinook Work Group composed of state, tribal, Council, and NMFS scientists. Applying the ABM framework to the 2012 preseason abundance forecast, the LCR tule exploitation rate is limited to a maximum of 0.41. The Council's recommended 2012 management measures meet this objective .

In 2008, NMFS conducted an ESA section 7 consultation and issued a biological opinion regarding the effects of Council fisheries and fisheries in the Columbia River on LCR coho. The states of Oregon and Washington use a harvest matrix for LCR coho that Oregon developed after the species was listed under Oregon's State ESA. Under the matrix the allowable harvest in a given year depends on indicators of marine survival and brood year escapement. The matrix has both ocean and in-river components which can be combined to define a total exploitation rate limit for all ocean and in-river fisheries. Generally speaking, NMFS supports using management planning tools that allow harvest to vary depending on the year-specific circumstances. Conceptually, we think Oregon's approach is a good one. However, NMFS has taken a more conservative approach for LCR coho in recent years because of unresolved issues related to applying the matrix. NMFS will continue to apply the matrix as we have in the past, by limiting the total harvest to that allowed in the portion of the matrix that applies to ocean fisheries. As a consequence, ocean salmon fisheries under the Council's jurisdiction in 2012, and commercial and recreational salmon fisheries in the mainstem Columbia River, including select area fisheries (e.g., Youngs Bay), must be managed subject to a total exploitation rate limit on LCR coho not to exceed 15 percent. The recommended management measures that would affect LCR coho are consistent with this requirement.

The ESA listing status of Oregon Coast (OC) coho has changed over the years. On June 20, 2011, NMFS again listed OC coho as threatened under the ESA (76 FR 35755). Regardless of their listing status, the Council has managed OC coho consistent with the terms of Amendment 13 of the Salmon FMP as modified by the expert advice provided by the 2000 ad hoc Work Group appointed by the Council. NMFS approved the management provisions for OC coho through its section 7 consultation on Amendment 13 in 1999, and has since supported use of the expert advice provided by the Council's ad hoc Work Group. For the 2012 season, the applicable spawner status is in the “high” category for three of the four sub-aggregate stocks and “low” for the southern sub-aggregate. The marine survival index is in the “low” category. Under these circumstances, the Work Group report requires that the exploitation rate be limited to no more than 15 percent. The recommended management measures that would affect OC coho are consistent with this requirement.

Interior Fraser (Thompson River) coho, a Canadian stock, continues to be depressed, remaining in the “low” status category under the Pacific Salmon Treaty and, along with LCR coho, is the coho stock most limiting the 2012 ocean fisheries north of Cape Falcon. The recommended management measures for 2012 satisfy the maximum 10.0 percent total U.S. exploitation rate called for by the Pacific Salmon Treaty agreements and the Salmon FMP.

The Council-recommended ocean harvest levels and management measures for the 2012 fisheries are designed to apportion the burden of protecting the weak stocks identified and discussed in PRE I equitably among ocean fisheries, while allowing the maximum harvest of natural and hatchery runs that are surplus to the needs of inside fisheries and spawning escapement. NMFS finds the Council's recommendations responsive to the goals of the Salmon FMP, the requirements of the resource, and the socioeconomic factors affecting resource users. The recommendations are consistent with the requirements of the Magnuson-Stevens Fishery Conservation and Management Act and U.S. obligations to Indian tribes with federally recognized fishing rights, and U.S. international obligations regarding Pacific salmon. Accordingly, NMFS has adopted them.

North of Cape Falcon, the 2012 management measures for non-Indian commercial troll and recreational fisheries have a significantly higher Chinook salmon quota and a similar coho quota relative to the 2011 season. Chinook abundance in this area is generally improved in 2012 relative to 2011 and conservation constraints are reduced. The exploitation rate limit for ESA-listed Lower Columbia River (LCR) tule Chinook is 41 percent in 2012, compared to 37 percent in 2011, due to adoption of a new ESA consultation standard. Harvest impacts on ESA-listed LCR tule Chinook salmon in Alaskan and Canadian fisheries are also reduced relative to 2011. The North of Falcon fisheries are also managed to protect threatened Lower Columbia River coho, threatened Oregon Coastal Natural coho, and coho salmon from the Thompson River in Canada. Washington coastal and Puget Sound Chinook generally migrate to the far north and are not significantly affected by ocean salmon harvests from Cape Falcon, OR, to the U.S.-Canada border. Nevertheless, ocean fisheries in combination with fisheries inside Puget Sound are restricted in order to meet ESA related conservation objectives for Puget Sound Chinook. North of Cape Alava, WA, the Council recommended a provision prohibiting retention of chum salmon in the salmon fisheries during August and September to protect ESA listed Hood Canal summer chum. The Council has recommended such a prohibition since 2002 (67 FR 30616, May 7, 2002).

South of Cape Falcon, the commercial salmon fishery will have area specific openings throughout the season for all salmon except coho. As in 2011, there will not be a commercial salmon fishery for coho south of Cape Falcon in 2012. The Council also included provisions for non-retention sampling for salmon genetic stock identification (GSI) research during closed periods under a scientific research permit to be issued by NMFS. Recreational fisheries south of Cape Falcon will be directed primarily at Chinook salmon, with opportunity for coho limited to the area between Cape Falcon and the Oregon/California Border. Recreational fisheries south of Cape Falcon will have area specific openings throughout the season. As noted above, the projected abundance of Sacramento River Fall Chinook is significantly higher in 2012 than in 2011. Under the management measures in this final rule, and including anticipated in-river fishery impacts, spawning escapement for SRFC is projected at 455,800. Projected abundance for KRFC is also significantly higher in 2012 than in 2011. Under the management measures in this rule, and including anticipated in-river fishery impacts, spawning escapement for KRFC is projected at 86,288.

The treaty-Indian commercial troll fishery quota for 2012 is 55,000 Chinook salmon in ocean management areas and Washington State Statistical Area 4B combined. This quota is higher than the 41,000 Chinook salmon quota in 2011, for the same reasons discussed above for the non-tribal fishery. The treaty-Indian commercial troll fisheries include a Chinook-directed fishery in May and June with a quota of 27,500 Chinook salmon, and an all-salmon season beginning July 1 with a 27,500 Chinook salmon sub-quota. The coho quota for the treaty-Indian troll fishery in ocean management areas, including Washington State Statistical Area 4B, for the July-September period is 47,500 coho, somewhat increased over the 42,000 coho quota in 2011.

The timing of the March and April Council meetings makes it impracticable for the Council to recommend fishing seasons beginning before May 1 of the same year. Therefore, this action also establishes the 2013 fishing seasons that open earlier than May 1. The Council recommended, and NMFS concurs, that the commercial season off Oregon from Cape Falcon to the Oregon/California border, the commercial season off California from Horse Mountain to Point Arena, the recreational season off Oregon from Cape Falcon to Humbug Mountain, and the recreational season off California from Horse Mountain to the U.S./Mexico border will open in 2013 as indicated in the Season Description section of this document. At the March 2013 meeting, the Council may consider inseason recommendations to adjust the commercial and recreational seasons prior to May 1 in the areas off Oregon and California.

The following sections set out the management regime for the salmon fishery. Open seasons and days are described in Sections 1, 2, and 3 of the 2012 management measures. Inseason closures in the commercial and recreational fisheries are announced on the NMFS hotline and through the U.S. Coast Guard Notice to Mariners as described in Section 6. Other inseason adjustments to management measures are also announced on the hotline and through the Notice to Mariners. Inseason actions will also be published in the Federal Register as soon as practicable.

The following are the management measures recommended by the Council and approved and implemented here for 2012 and, as specified, for 2013.

Parts A, B, and C of this section contain restrictions that must be followed for lawful participation in the fishery. Part A identifies each fishing area and provides the geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions and exceptions.

May 1 through earlier of June 30 or 31,700 Chinook quota. Seven days per week (C.1). All salmon except coho (C.7). Chinook minimum size limit of 28 inches total length (B). Cape Flattery, Mandatory Yelloweye Rockfish Conservation Area, and Columbia Control Zones closed (C.5). See gear restrictions and definitions (C.2, C.3). An inseason conference call will occur when it is projected that 24,975 Chinook have been landed to consider modifying the open period to five days per week and adding landing and possession limits to ensure the guideline is not exceeded (C.8.f).

July 1 through earlier of September 17 or 15,800 preseason Chinook guideline (C.8) or a 13,280 marked coho quota (C.8). July 1-4, then Friday through Tuesday July 6-August 21 with a landing and possession limit of 40 Chinook and 35 coho per vessel per open period; Friday through Monday August 24-September 17, with a landing and possession limit of 20 Chinook and 40 coho per vessel per open period (C.1, C.8.f). No earlier than September 1, if at least 5,000 marked coho remain on the quota, inseason action may be considered to allow non-selective coho retention (C.8.e). All salmon except no chum salmon retention north of Cape Alava, Washington in August and September (C.7). All coho must be marked except as noted above (C.8.e). Chinook minimum size limit of 28 inches total length; coho minimum size limit of 16 inches total length (B). See gear restrictions and definitions (C.2, C.3). Mandatory Yelloweye Rockfish Conservation Area, Cape Flattery and Columbia Control Zones, and beginning August 1, Grays Harbor Control Zone Closed (C.5).

Vessels must land and deliver their fish within 24 hours of any closure of this fishery. Under state law, vessels must report their catch on a state fish receiving ticket. Vessels fishing or in possession of salmon while fishing north of Leadbetter Point must land and deliver their fish within the area and north of Leadbetter Point. Vessels fishing or in possession of salmon while fishing south of Leadbetter Point must land and deliver their fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land their fish in Garibaldi, Oregon. Oregon State regulations require all fishers landing salmon into Oregon from any fishery between Leadbetter Point, Washington and Cape Falcon, Oregon must notify Oregon Department of Fish and Wildlife (ODFW) within one hour of delivery or prior to transport away from the port of landing by either calling 541-867-0300 Ext. 271 or sending notification via email to nfalcon.trollreport@state.or.us. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts.

April 1 through August 29;

September 5 through October 31. (C.9).

Seven days per week (C.1). All salmon except coho (C.7). Landing and possession limit of 100 Chinook per vessel per calendar week in September and October. Chinook minimum size limit of 28 inches total length (B). All vessels fishing in the area must land their fish in the State of Oregon. See gear restrictions and definitions (C.2, C.3) and Oregon State regulations for a description of special regulations at the mouth of Tillamook Bay.

In 2013, the season will open March 15 for all salmon except coho with a 28-inch minimum Chinook size limit and the same gear restrictions as in 2012. This opening could be modified following Council review at its March 2013 meeting.

April 1 through May 31;

June 1 through earlier of June 30, or a 2,000 Chinook quota;

July 1 through earlier of July 31, or a 1,500 Chinook quota;

August 1 through earlier of August 29, or a 1,000 Chinook quota;

September 5 through earlier of September 30, or a 1,000 Chinook quota (C.9).

Seven days per week (C.1). All salmon except coho (C.7). Chinook minimum size limit of 28 inches total length (B). June 1 through September 30, landing and possession limit of 30 Chinook per vessel per day (C.8.f). Any remaining portion of the June and/or July Chinook quotas may be transferred inseason on an impact neutral basis to the next open quota period (no transfer to September quota allowed) (C.8.b). Prior to June 1, all fish caught in this area must be landed and delivered in the State of Oregon. Beginning June 1, all vessels fishing in this area must land and deliver all fish within this area or Port Orford, within 24 hours of any closure in this fishery, and prior to fishing outside of this area (C.1, C.6). Oregon State regulations require all fishers landing salmon from any quota managed season within this area to notify ODFW within 1 hour of delivery or prior to transport away from the port of landing by either calling (541) 867-0300 ext. 252 or sending notification via email to KMZOR.trollreport@state.or.us. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. See gear restrictions and definitions (C.2, C.3).

June 1 through October 31

When otherwise closed to Chinook retention, collection of 200 genetic stock identification samples per week will be permitted (C.4). All salmon must be released in good condition after collection of biological samples.

In 2013, the season will open March 15 for all salmon except coho, with a 28-inch minimum Chinook size limit and the same gear restrictions as in 2012. This opening may be modified following Council review at its March 2013 meeting.

May 1 through September 14.

Closed except for sufficient impacts to collect 200 genetic stock identification samples per week (C.4). All salmon must be released in good condition after collection of biological samples.

September 15 through earlier of September 30, or 6,000 Chinook quota (C.9).

Seven days per week (C.1). All salmon except coho (C.7). Chinook minimum size limit of 27 inches total length (B). Landing and possession limit of 25 Chinook per vessel per day (C.8.f). All fish caught in this area must be landed within the area and within 24 hours of any closure of the fishery and prior to fishing outside of this area. See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). Klamath Control Zone closed (C.5.e). See California State regulations for additional closures adjacent to the Smith and Klamath Rivers. When the fishery is closed between the Oregon/California Border and Humbug Mountain and open to the south, vessels with fish on board caught in the open area off California may seek temporary mooring in Brookings, Oregon prior to landing in California only if such vessels first notify the Chetco River Coast Guard Station via VHF channel 22A between the hours of 0500 and 2200 and provide the vessel name, number of fish on board, and estimated time of arrival (C.6).

May 1 through September 30.

Closed except for collection of the genetic stock identification samples noted above, see California KMZ (C.4). All salmon must be released in good condition after collection of biological samples.

May 1 through July 10.

Closed except for sufficient impacts to collect 200 genetic stock identification samples per week (C.4). All salmon must be released in good condition after collection of biological samples.

July 11 through August 29;

September 1 through 30 (C.9).

Seven days per week (C.1). All salmon except coho (C.7). Chinook 27-inch minimum size limit (B). All fish must be landed in California and offloaded within 24 hours of the August 29 closure. During September, all fish caught in the area must be landed north of Point Arena; all fish caught in the area when the California KMZ fishery is open must be landed between Horse Mountain and Point Arena (C.1). See gear restrictions and definitions (C.2, C.3).

In 2013, the season will open April 16 through 30 for all salmon except coho, with a 27-inch minimum Chinook size limit and the same gear restrictions as in 2012. All fish caught in the area must be landed in the area. This opening could be modified following Council review at its March 2013 meeting.

May 1 through June 4;

June 27 through August 29;

September 1 through 30 (C.9).

Seven days per week (C.1). All salmon except coho (C.7). Chinook minimum size limit of 27 inches total length prior to September 1, 26 inches thereafter (B). All fish must be landed in California and offloaded within 24 hours of the August 29 closure. During September, all fish caught in the area must be landed south of Point Arena. See gear restrictions and definitions (C.2, C.3).

June 5 through 26.

Closed except for sufficient impacts to collect 400 genetic stock identification samples per week (C.4). All salmon must be released in good condition after collection of biological samples.

• Point Reyes to Point. San Pedro (Fall Area Target Zone)

October 1 through 12.

Monday through Friday. All salmon except coho (C.7). Chinook minimum size limit 26 inches total length (B). All vessels fishing in this area must land and deliver all fish between Point Arena and Pigeon Point (C.1). See gear restrictions and definitions (C.2, C.3).

Same as Point Arena to Pigeon Point, except June 5 through 26: closed except for sufficient impacts to collect 200 genetic stock identification samples per week (C.4). All salmon must be released in good condition after collection of biological samples.

May 1 through August 29;

September 1 through 30 (C.9).

Seven days per week (C.1). All salmon except coho (C.7). Chinook minimum size limit of 27 inches total length prior to September 1, 26 inches thereafter (B). All fish must be landed in California and offloaded within 24 hours of the August 29 closure; all fish caught in the area June 5 through 26 must be landed south of Point San Pedro; during September, all fish caught in the area must be landed south of Point Arena. See gear restrictions and definitions (C.2, C.3).

California State regulations require that all salmon be made available to a California Department of Fish and Game (CDFG) representative for sampling immediately at port of landing. Any person in possession of a salmon with a missing adipose fin, upon request by an authorized agent or employee of the CDFG, shall immediately relinquish the head of the salmon to the state (California Fish and Game Code § 8226).

All salmon on board a vessel must meet the minimum size, landing/possession limit, or other special requirements for the area being fished and the area in which they are landed if the area is open. Salmon may be landed in an area that has been closed more than 96 hours only if the salmon meet the minimum size, landing/possession limit, or other special requirements for the area in which they were caught. Salmon may be landed in an area that has been closed less than 96 hours only if the salmon meet the minimum size, landing/possession limit, or other special requirements for the areas in which they were caught and landed.

States may require fish landing/receiving tickets to be kept on board the vessel for 90 days after landing to account for all previous salmon landings.

a. Salmon may be taken only by hook and line using single point, single shank, barbless hooks.

b. Cape Falcon, Oregon, to the OR/CA border: No more than 4 spreads are allowed per line.

c. OR/CA border to U.S./Mexico border: No more than 6 lines are allowed per vessel, and barbless circle hooks are required when fishing with bait by any means other than trolling.

Trolling defined: Fishing from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

Troll fishing gear defined: One or more lines that drag hooks behind a moving fishing vessel. In that portion of the fishery management area (FMA) off Oregon and Washington, the line or lines must be affixed to the vessel and must not be intentionally disengaged from the vessel at any time during the fishing operation.

Spread defined: A single leader connected to an individual lure or bait.

Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

a. Except as provided under C.4.b below, it is unlawful for a vessel to have troll or recreational gear in the water while in any area closed to fishing for a certain species of salmon, while possessing that species of salmon; however, fishing for species other than salmon is not prohibited if the area is open for such species, and no salmon are in possession.

b. When Genetic Stock Identification (GSI) samples will be collected in an area closed to commercial salmon fishing, the scientific research permit holder shall notify NOAA Office of Law Enforcement (OLE), U.S. Coast Guard (USCG), CDFG, and Oregon State Patrol (OSP) at least 24 hours prior to sampling and provide the following information: the vessel name, date, location, and time collection activities will be done. Any vessel collecting GSI samples in a closed area shall not possess any salmon other than those from which GSI samples are being collected. Salmon caught for collection of GSI samples must be immediately released in good condition after collection of samples.

a. Cape Flattery Control Zone—The area from Cape Flattery (48°23′00″ N. lat.) to the northern boundary of the U.S. EEZ; and the area from Cape Flattery south to Cape Alava (48°10′00″ N. lat.) and east of 125°05′00″ W. long.

b. Mandatory Yelloweye Rockfish Conservation Area—The area in Washington Marine Catch Area 3 from 48°00.00′ N. lat.; 125°14.00′ W. long. to 48°02.00′ N. lat.; 125°14.00′ W. long. to 48°02.00′ N. lat.; 125°16.50′ W. long. to 48°00.00′ N. lat.; 125°16.50′ W. long. and connecting back to 48°00.00′ N. lat.; 125°14.00′ W. long.

c. Grays Harbor Control Zone—The area defined by a line drawn from the Westport Lighthouse (46°53′18″ N. lat., 124°07′01″ W. long.) to Buoy #2 (46°52′42″ N. lat., 124°12′42″ W. long.) to Buoy #3 (46°55′00″ N. lat., 124°14′48″ W. long.) to the Grays Harbor north jetty (46°36′00″ N. lat., 124°10′51″ W. long.).

d. Columbia Control Zone—An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long.), and then along the north jetty to the point of intersection with the Buoy #10 line; and, on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

e. Klamath Control Zone—The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately six nautical miles north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles off shore); and on the south, by 41°26′48″ N. lat. (approximately six nautical miles south of the Klamath River mouth).

If prevented by unsafe weather conditions or mechanical problems from meeting special management area landing restrictions, vessels must notify the U.S. Coast Guard and receive acknowledgment of such notification prior to leaving the area. This notification shall include the name of the vessel, port where delivery will be made, approximate amount of salmon (by species) on board, the estimated time of arrival, and the specific reason the vessel is not able to meet special management area landing restrictions.

In addition to contacting the U.S. Coast Guard, vessels fishing south of the Oregon/California border must notify CDFG within one hour of leaving the management area by calling 800-889-8346 and providing the same information as reported to the U.S. Coast Guard. All salmon must be offloaded within 24 hours of reaching port.

During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (IPHC) (phone: 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May and June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone: 800-662-9825). ODFW and Washington Department of Fish and Wildlife (WDFW) will monitor landings. If the landings are projected to exceed the 30,568 pound preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to prohibit retention of halibut in the non-Indian salmon troll fishery.

Beginning May 1, IPHC license holders may possess or land no more than one Pacific halibut per each four Chinook, except one Pacific halibut may be possessed or landed without meeting the ratio requirement, and no more than 20 halibut may be possessed or landed per trip. Pacific halibut retained must be no less than 32 inches in total length (with head on).

A “C-shaped” yelloweye rockfish conservation area (YRCA) is an area to be voluntarily avoided for salmon trolling. NMFS and the Council request salmon trollers voluntarily avoid this area in order to protect yelloweye rockfish. The area is defined in the Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (Washington marine area 3), with the following coordinates in the order listed:

In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance applies:

a. Chinook remaining from the May through June non-Indian commercial troll harvest guideline north of Cape Falcon may be transferred to the July through September harvest guideline, if the transfer would not result in exceeding preseason impact expectations on any stocks.

b. Chinook remaining from the June and/or July non-Indian commercial troll quotas in the Oregon KMZ may be transferred to the Chinook quota for the next open period if the transfer would not result in exceeding preseason impact expectations on any stocks.

c. NMFS may transfer fish between the recreational and commercial fisheries north of Cape Falcon if there is agreement among the areas' representatives on the Salmon Advisory Subpanel (SAS), and if the transfer would not result in exceeding the preseason impact expectations on any stocks.

d. At the March 2013 meeting, the Council will consider inseason recommendations for special regulations for any experimental fisheries (proposals must meet Council protocol and be received in November 2012).

e. If retention of unmarked coho is permitted by inseason action, the allowable coho quota will be adjusted to ensure preseason projected mortality of critical stocks is not exceeded.

f. Landing limits may be modified inseason to sustain season length and keep harvest within overall quotas.

Consistent with Council management objectives:

a. The State of Oregon may establish additional late-season fisheries in state waters.

b. The State of California may establish limited fisheries in selected state waters. Check state regulations for details.

Parts A, B, and C of this section contain restrictions that must be followed for lawful participation in the fishery. Part A identifies each fishing area and provides the geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions and exceptions.

June 16 through earlier of June 30 or a coastwide marked Chinook quota of 8,000 (C.5).

Seven days per week. Two fish per day, all salmon except coho, all Chinook must be marked with a healed adipose fin clip (C.1). Chinook 24-inch total length minimum size limit (B). See gear restrictions (C.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).

June 9 through earlier of June 23 or a coastwide marked Chinook quota of 8,000 (C.5).

Seven days per week. Two fish per day, all salmon except coho, all Chinook must be marked with a healed adipose fin clip (C.1). Chinook 24-inch total length minimum size limit (B). See gear restrictions (C.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).

June 9 through earlier of June 22 or a coastwide marked Chinook quota of 8,000 (C.5).

Seven days per week. Two fish per day, all salmon except coho, all Chinook must be marked with a healed adipose fin clip (C.1). Chinook 24-inch total length minimum size limit (B). See gear restrictions (C.2). Inseason management may be used to sustain season length and keep harvest within the overall Chinook recreational TAC for north of Cape Falcon (C.5).

July 1 through earlier of September 23 or 7,250 marked coho subarea quota with a subarea guideline of 4,700 Chinook (C.5). Seven days per week. All salmon except no chum beginning August 1; two fish per day. All coho must be marked (C.1). Beginning August 1, Chinook non-retention east of the Bonilla-Tatoosh line (C.4.a) during Council managed ocean fishery. See gear restrictions and definitions (C.2, C.3). Inseason management may be used to sustain season length and keep harvest within the overall Chinook and coho recreational TACs for north of Cape Falcon (C.5).

July 1 through earlier of September 23 or 1,760 marked coho subarea quota with a subarea guideline of 2,050 Chinook (C.5).

September 29 through earlier of October 14 or 50 marked coho quota or 50 Chinook quota (C.5) in the area north of 47°50′00″ N. lat. and south of 48°00′00″ N. lat. Seven days per week. All salmon; two fish per day. All coho must be marked (C.1). See gear restrictions (C.2, C.3). Inseason management may be used to sustain season length and keep harvest within the overall Chinook and coho recreational TACs for north of Cape Falcon (C.5).

June 24 through earlier of September 23 or 25,800 marked coho subarea quota with a subarea guideline of 25,600 Chinook (C.5).

Sunday through Thursday. All salmon; two fish per day, no more than one of which can be a Chinook. All coho must be marked (C.1). See gear restrictions and definitions (C.2, C.3). Inseason management may be used to sustain season length and keep harvest within the overall Chinook and coho recreational TACs for north of Cape Falcon (C.5).

June 23 through earlier of September 30 or 34,860 marked coho subarea quota with a subarea guideline of 11,100 Chinook (C.5).

Seven days per week. All salmon; two fish per day, no more than one of which can be a Chinook. All coho must be marked (C.1). See gear restrictions and definitions (C.2, C.3). Columbia Control Zone closed (C.4). Inseason management may be used to sustain season length and keep harvest within the overall Chinook and coho recreational TACs for north of Cape Falcon (C.5).

Except as provided below during the all-salmon mark-selective and non-mark-selective coho fisheries, the season will be March 15 through October 31 (C.6). All salmon except coho; two fish per day (B, C.1). See gear restrictions and definitions (C.2, C.3).

Cape Falcon to OR/CA Border all-salmon mark-selective coho fishery: July 1 through earlier of July 31 or a landed catch of 8,000 marked coho.

Seven days per week. All salmon, two fish per day. All retained coho must be marked (C.1). Any remainder of the mark selective coho quota may be transferred on an impact neutral basis to the September non-selective coho quota listed below (C.5.e). The “all salmon except coho” season reopens the earlier of August 1 or attainment of the coho quota, through August 31.

Cape Falcon to Humbug Mountain non-mark-selective coho fishery: September 1 through the earlier of September 22 or a landed catch of 10,000 non-mark-selective coho quota (C.5).

September 1 through 3, then Thursday through Saturday thereafter; all salmon, two fish per day (C.5);

September 4 through 5, then Sunday through Wednesday thereafter; all salmon except coho, two fish per day. The all salmon except coho season reopens the earlier of September 23 or attainment of the coho quota. Open days may be adjusted inseason to utilize the available coho quota (C.5).

Fishing in the Stonewall Bank Yelloweye Rockfish Conservation Area restricted to trolling only on days the all depth recreational halibut fishery is open (call the halibut fishing hotline 800-662-9825 for specific dates) (C.3.b, C.4.d).

In 2013, the season between Cape Falcon and Humbug Mountain opens March 15 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length (B); and the same gear restrictions as in 2012 (C.2, C.3). This opening could be modified following Council review at its March 2013 meeting.

Except as provided above during the all-salmon mark-selective coho fishery, the season will be May 1 through September 9 (C.6). All salmon except coho, except as noted above in the all-salmon mark-selective coho fishery. Seven days per week, two fish per day (C.1). Chinook minimum size limit of 24 inches total length (B). See gear restrictions and definitions (C.2, C.3).

May 1 through September 9 (C.6).

All salmon except coho. Seven days per week, two fish per day (C.1). Chinook minimum size limit of 20 inches total length (B). See gear restrictions and definitions (C.2, C.3). Klamath Control Zone closed in August (C.4.e). See California State regulations for additional closures adjacent to the Smith, Eel, and Klamath Rivers.

April 7 through November 11.

Seven days per week. All salmon except coho, two fish per day (C.1). Chinook minimum size limit of 20 inches total length (B). See gear restrictions and definitions (C.2, C.3).

In 2013, season opens April 6 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 20 inches total length (B); and the same gear restrictions as in 2012 (C.2, C.3). This opening could be modified following Council review at its March 2013 meeting.

April 7 through November 11.

Seven days per week. All salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length through July 5, 20 inches thereafter (B). See gear restrictions and definitions (C.2, C.3).

In 2013, season opens April 6 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length (B); and the same gear restrictions as in 2012 (C.2, C.3). This opening could be modified following Council review at its March 2013 meeting.

April 7 through October 7.

Seven days per week. All salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length through July 5, 20 inches thereafter (B). See gear restrictions and definitions (C.2, C.3).

In 2013, season opens April 6 for all salmon except coho, two fish per day (C.1). Chinook minimum size limit of 24 inches total length (B); and the same gear restrictions as in 2012 (C.2, C.3). This opening could be modified following Council review at its March 2013 meeting.

California State regulations require that all salmon be made available to a CDFG representative for sampling immediately at port of landing. Any person in possession of a salmon with a missing adipose fin, upon request by an authorized agent or employee of the CDFG, shall immediately relinquish the head of the salmon to the state (California Fish and Game Code § 8226).

All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught.

Ocean Boat Limits: Off the coast of Washington, Oregon, and California, each fisher aboard a vessel may continue to use angling gear until the combined daily limits of salmon for all licensed and juvenile anglers aboard has been attained (additional state restrictions may apply).

Salmon may be taken only by hook and line using barbless hooks. All persons fishing for salmon, and all persons fishing from a boat with salmon on board, must meet the gear restrictions listed below for specific areas or seasons.

a. U.S./Canada Border to Point Conception, California: No more than one rod may be used per angler; and no more than two single point, single shank barbless hooks are required for all fishing gear. [ Note: ODFW regulations in the state-water fishery off Tillamook Bay may allow the use of barbed hooks to be consistent with inside regulations.]

b. Horse Mountain, California, to Point Conception, California: Single point, single shank, barbless circle hooks (see gear definitions below) are required when fishing with bait by any means other than trolling, and no more than two such hooks shall be used. When angling with two hooks, the distance between the hooks must not exceed five inches when measured from the top of the eye of the top hook to the inner base of the curve of the lower hook, and both hooks must be permanently tied in place (hard tied). Circle hooks are not required when artificial lures are used without bait.

a. Recreational fishing gear defined: Angling tackle consisting of a line with no more than one artificial lure or natural bait attached. Off Oregon and Washington, the line must be attached to a rod and reel held by hand or closely attended; the rod and reel must be held by hand while playing a hooked fish. No person may use more than one rod and line while fishing off Oregon or Washington. Off California, the line must be attached to a rod and reel held by hand or closely attended; weights directly attached to a line may not exceed four pounds (1.8 kg). While fishing off California north of Point Conception, no person fishing for salmon, and no person fishing from a boat with salmon on board, may use more than one rod and line. Fishing includes any activity which can reasonably be expected to result in the catching, taking, or harvesting of fish.

b. Trolling defined: Angling from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

c. Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

a. The Bonilla-Tatoosh Line: A line running from the western end of Cape Flattery to Tatoosh Island Lighthouse (48°23′30″ N. lat., 124°44′12″ W. long.) to the buoy adjacent to Duntze Rock (48°28′00″ N. lat., 124°45′00″ W. long.), then in a straight line to Bonilla Point (48°35′30″ N. lat., 124°43′00″ W. long.) on Vancouver Island, British Columbia.

b. Grays Harbor Control Zone—The area defined by a line drawn from the Westport Lighthouse (46°53′18″ N. lat., 124°07′01″ W. long.) to Buoy #2 (46°52′42″ N. lat., 124°12′42″ W. long.) to Buoy #3 (46°55′00″ N. lat., 124°14′48″ W. long.) to the Grays Harbor north jetty (46°36′00″ N. lat., 124°10′51″ W. long.).

c. Columbia Control Zone: An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N. lat., 124°06′50″ W. long.) and the green lighted Buoy #7 (46°15′09″ N. lat., 124°06′16″ W. long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N. lat., 124°03′07″ W. long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N. lat., 124°05′20″ W. long.) and then along the north jetty to the point of intersection with the Buoy #10 line; and on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N. lat., 124°04′05″ W. long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

d. Stonewall Bank Yelloweye Rockfish Conservation Area: The area defined by the following coordinates in the order listed:

e. Klamath Control Zone: The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N. lat. (approximately six nautical miles north of the Klamath River mouth); on the west, by 124°23′00″ W. long. (approximately 12 nautical miles off shore); and, on the south, by 41°26′48″ N. lat. (approximately 6 nautical miles south of the Klamath River mouth).

Regulatory modifications may become necessary inseason to meet preseason management objectives such as quotas, harvest guidelines, and season duration. In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance applies:

a. Actions could include modifications to bag limits, or days open to fishing, and extensions or reductions in areas open to fishing.

b. Coho may be transferred inseason among recreational subareas north of Cape Falcon to help meet the recreational season duration objectives (for each subarea) after conferring with representatives of the affected ports and the Council's SAS recreational representatives north of Cape Falcon, and if the transfer would not result in exceeding preseason impact expectations on any stocks.

c. Chinook and coho may be transferred between the recreational and commercial fisheries north of Cape Falcon if there is agreement among the representatives of the SAS, and if the transfer would not result in exceeding preseason impact expectations on any stocks.

d. Fishery managers may consider inseason action permitting the retention of unmarked coho. Such a consideration may also include a change in bag limit of two salmon, no more than one of which may be a coho. If retention of unmarked coho is permitted by inseason action, the allowable coho quota will be adjusted to ensure preseason projected impacts on all stocks is not exceeded.

e. Marked coho remaining from the July Cape Falcon to Oregon/California border recreational coho quota may be transferred inseason to the September Cape Falcon to Humbug Mountain non-mark-selective recreational fishery if the transfer would not result in exceeding preseason impact expectations on any stocks.

Consistent with Council management objectives, the States of Washington, Oregon, and California may establish limited seasons in state waters. Check state regulations for details.

Parts A, B, and C of this section contain requirements that must be followed for lawful participation in the fishery.

May 1 through the earlier of June 30 or 27,500 Chinook quota. All salmon except coho. If the Chinook quota for the May through June fishery is not fully utilized, the excess fish may be transferred into the later all-salmon season (C.5.a). If the Chinook quota is exceeded, the excess will be deducted from the later all-salmon season (C.5). See size limit (B) and other restrictions (C).

July 1 through the earlier of September 15, or 27,500 preseason Chinook quota (C.5), or 47,500 coho quota. All salmon. See size limit (B) and other restrictions (C).

All boundaries may be changed to include such other areas as may hereafter be authorized by a Federal court for that tribe's treaty fishery.

S'KLALLAM—Washington State Statistical Area 4B (All).

MAKAH—Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long.

QUILEUTE—That portion of the FMA between 48°07′36″ N. lat. (Sand Pt.) and 47°31′42″ N. lat. (Queets River) and east of 125°44′00″ W. long.

HOH—That portion of the FMA between 47°54′18″ N. lat. (Quillayute River) and 47°21′00″ N. lat. (Quinault River) and east of 125°44′00″ W. long.

QUINAULT—That portion of the FMA between 47°40′06″ N. lat. (Destruction Island) and 46°53′18″N. lat. (Point Chehalis) and east of 125°44′00″ W. long.

a. Single point, single shank, barbless hooks are required in all fisheries.

b. No more than eight fixed lines per boat.

c. No more than four hand held lines per person in the Makah area fishery (Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N. lat. (Norwegian Memorial) and east of 125°44′00″ W. long.)

a. The quotas include troll catches by the S'Klallam and Makah tribes in Washington State Statistical Area 4B from May 1 through September 15.

b. The Quileute Tribe will continue a ceremonial and subsistence fishery during the time frame of September 15 through October 15 in the same manner as in 2004 through 2011. Fish taken during this fishery are to be counted against treaty troll quotas established for the 2012 season (estimated harvest during the October ceremonial and subsistence fishery: 100 Chinook; 200 coho).

a. The area within a six nautical mile radius of the mouths of the Queets River (47°31′42″ N. lat.) and the Hoh River (47°45′12″ N. lat.) will be closed to commercial fishing.

b. A closure within two nautical miles of the mouth of the Quinault River (47°21′00″ N. lat.) may be enacted by the Quinault Nation and/or the State of Washington and will not adversely affect the Secretary of Commerce's management regime.

In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance applies:

a. Chinook remaining from the May through June treaty-Indian ocean troll harvest guideline north of Cape Falcon may be transferred to the July through September harvest guideline if the transfer would not result in exceeding preseason impact expectations on any stocks.

Under the authority of the Northern Pacific Halibut Act, NMFS promulgated regulations governing the Pacific halibut fishery, which appear at 50 CFR part 300, subpart E. On March 22, 2012, NMFS published a final rule (77 FR 16740) to implement the IPHC's recommendations, to announce fishery regulations for U.S. waters off Alaska and fishery regulations for treaty commercial and ceremonial and subsistence fisheries, some regulations for non-treaty commercial fisheries for U.S. waters off the West Coast, and approval of and implementation of the Area 2A Pacific halibut Catch Sharing Plan and the Area 2A management measures for 2012. The regulations and management measures provide that vessels participating in the salmon troll fishery in Area 2A (all waters off the States of Washington, Oregon, and California), which have obtained the appropriate IPHC license, may retain halibut caught incidentally during authorized periods in conformance with provisions published with the annual salmon management measures. A salmon troller may participate in the halibut incidental catch fishery during the salmon troll season or in the directed commercial fishery targeting halibut, but not both.

The following measures have been approved by the IPHC, and implemented by NMFS. During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. License applications for incidental harvest must be obtained from the International Pacific Halibut Commission (phone: 206-634-1838). Applicants must apply prior to April 1 of each year. Incidental harvest is authorized only during May and June troll seasons and after June 30 if quota remains and if announced on the NMFS hotline (phone: 800-662-9825). ODFW and WDFW will monitor landings. If the landings are projected to exceed the 30,568 pound preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to close the incidental halibut fishery.

Beginning May 1, IPHC license holders may possess or land no more than one Pacific halibut per each four Chinook, except one Pacific halibut may be possessed or landed without meeting the ratio requirement, and no more than 20 halibut may be possessed or landed per trip. Pacific halibut retained must be no less than 32 inches in total length (with head on).

NMFS and the Council request that salmon trollers voluntarily avoid a “C-shaped” YRCA (North Coast Recreational YRCA, also known as the Salmon Troll YRCA) in order to protect yelloweye rockfish. Coordinates for the Salmon Troll YRCA are defined in the Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (Washington marine area 3). See Section 1.C.7. in this document for the coordinates.

Wherever the words “nautical miles off shore” are used in this document, the distance is measured from the baseline from which the territorial sea is measured.

Geographical landmarks referenced in this document are at the following locations:

Actual notice of inseason management actions will be provided by a telephone hotline administered by the Northwest Region, NMFS, 206-526-6667 or 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts. These broadcasts are announced on Channel 16 VHF-FM and 2182 KHz at frequent intervals. The announcements designate the channel or frequency over which the Notice to Mariners will be immediately broadcast. Inseason actions will also be filed with the Federal Register as soon as practicable. Since provisions of these management measures may be altered by inseason actions, fishermen should monitor either the telephone hotline or Coast Guard broadcasts for current information for the area in which they are fishing.

This final rule is necessary for conservation and management and is consistent with the Magnuson-Stevens Act. These regulations are being promulgated under the authority of 16 U.S.C. 1855(d) and 16 U.S.C. 773(c).

This notification of annual management measures is exempt from review under Executive Order 12866.

The provisions of 50 CFR 660.411 state that

The Assistant Administrator for Fisheries, NOAA (AA) finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for public comment, as such procedures are impracticable and contrary to the public interest.

The annual salmon management cycle begins May 1 and continues through April 30 of the following year. May 1 was chosen because the pre-May harvests constitute a relatively small portion of the annual catch. The time-frame of the preseason process for determining the annual modifications to ocean salmon fishery management measures depends on when the pertinent biological data are available. Salmon stocks are managed to meet annual spawning escapement goals or specific exploitation rates. Achieving either of these objectives requires designing management measures appropriate for the ocean abundance predicted for that year. These pre-season abundance forecasts, which are derived from the previous year's observed spawning escapement, vary substantially from year to year, and are not available until January and February because spawning escapement continues through the fall.

The Council initiated the preseason planning and public review process to develop their recommendations in February, as soon as the forecast information becomes available. The public planning process requires four states, numerous Indian tribes, and the Federal Government, all of which have management authority over the stocks to coordinate management actions. This complex process includes the affected user groups, as well as the general public. The process is compressed into a 2-month period culminating at the April Council meeting when the Council adopts a recommendation for fishing regulations that is forwarded to NMFS for review, approval and implementation by May 1.

Providing opportunity for prior notice and public comments on the Council's recommended measures through a proposed and final rulemaking process would delay these measures 30 to 60 days in addition to the two-month period required to develop the regulations. This delay would require that fishing regulations for May and June be set in the previous year, and without the benefit of information regarding current stock status. For the 2012 fishing regulations, the current stock status was not available to the Council until February. Because the May and June salmon fisheries are relatively substantial fisheries, managing them with measures developed using the prior year's data could have significant adverse effects on the managed stocks, including ESA-listed stocks. Although salmon fisheries that open prior to May are managed under the prior year's measures, as modified by the Council at its March meeting, relatively little harvest occurs during that period (e.g., on average, less than 5 percent of commercial and recreational harvest occurred prior to May 1 during the years 2001 through 2010). Allowing the much more substantial harvest levels normally associated with the May and June salmon seasons to be promulgated under the prior year's regulations would impair NMFS' ability to protect weak and ESA listed salmon stocks that are impacted by the fishery, and to provide harvest opportunity where appropriate. The choice of May 1 as the beginning of the regulatory season balances the need to gather and analyze the data needed to meet the management objectives of the Salmon FMP and the need to manage the fishery using the best available scientific information.

If these measures are not in place on May 1, the previous year's management measures will continue to apply in most areas. This would result in lost fishing opportunities coastwide, especially commercial fisheries north of Cape Falcon which have higher quotas proposed for 2012 than in 2011.

Overall, the annual population dynamics of the various salmon stocks require managers to vary the season structure of the various West Coast area fisheries to both protect weaker stocks and give fishers access to stronger salmon stocks, particularly hatchery produced fish. Failure to implement these measures immediately could compromise the status of certain stocks, or result in foregone opportunity to harvest stocks whose abundance has increased relative to the previous year thereby undermining the purpose of this agency action. Based upon the above-described need to have these measures effective on May 1 and the fact that there is limited time available to implement these new measures after the final Council meeting in April and before the commencement of the ocean salmon fishing year on May 1, NMFS has concluded it is impracticable and contrary to the public interest to provide an opportunity for prior notice and public comment under 5 U.S.C. 553(b)(B).

The Assistant Administrator for Fisheries (AA) also finds that good cause exists under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of this final rule. As previously discussed, data are not available until February and management measures not finalized until mid-April. These measures are essential to conserve threatened and endangered ocean salmon stocks, and to provide for harvest of more abundant stocks. Failure to implement these measures immediately could compromise the ability of some stocks to attain their conservation objectives preclude harvest opportunity, and negatively impact anticipated international, state, and tribal salmon fisheries, thereby undermining the purposes of this agency action.

To enhance notification to the fishing industry of these new measures, NMFS announces new measures over the telephone hotline used for inseason management actions, and also posts the regulations on both of its West Coast regional Web sites ( www.nwr.noaa.gov and swr.nmfs.noaa.gov ). NMFS also advises the states of Washington, Oregon, and California on the new management measures. These states announce the seasons for applicable state and Federal fisheries through their own public notification systems.

This action contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by the Office of Management and Budget (OMB) under control number 0648-0433. The public reporting burden for notifying that landing area restrictions cannot be met is estimated to average 15 minutes per response. This estimate includes the time to review instructions, search existing data sources, gather and maintain the data needed, and complete and review the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by email to OIRA.Submission@omb.eop.gov, or fax to 202-395-7285.

Notwithstanding any other provision of the 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 PRA, unless that collection of information displays a currently valid OMB control number.

NMFS has current ESA biological opinions that cover fishing under these regulations on all listed salmon species. NMFS reiterated their consultation standards for all ESA listed salmon and steelhead species in their annual Guidance letter to the Council dated February 27, 2012. Some of NMFS' past biological opinions have found no jeopardy to salmon and steelhead species, and others have found jeopardy, but provided reasonable and prudent alternatives to avoid that jeopardy. The management measures for 2012 are consistent with the biological opinions that found no jeopardy, and with the reasonable and prudent alternatives in the jeopardy biological opinions. NMFS consulted this year on the effects of the 2012 annual regulations on LCR Chinook salmon. NMFS concluded that the proposed 2012 fisheries are not likely to jeopardize the continued existence of LCR Chinook salmon. NMFS also consulted this year on the effects of the 2012 annual regulations on Sacramento River winter Chinook salmon. NMFS provided a reasonable and prudent alternative in its jeopardy biological opinion, and the 2012 annual regulations are consistent with that RPA. The Council's recommended management measures therefore comply with NMFS' consultation standards and guidance for all listed salmon species which may be affected by Council fisheries. In many cases, the recommended measures result in impacts that are more restrictive than NMFS' ESA requirements.

In 2009, NMFS consulted on the effects of fishing under the Salmon FMP on the endangered Southern Resident Killer Whale Distinct Population Segment (SRKW) and concluded the salmon fisheries were not likely to jeopardize SRKW. The 2012 salmon management measures are consistent with the terms of that biological opinion.

This final rule was developed after meaningful consultation and collaboration with the affected tribes. The tribal representative on the Council made the motion for the regulations that apply to the tribal vessels.