Federal Civil Penalties Inflation Adjustment Act

The Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“FCPIA Act”), requires federal agencies to adjust, by regulation, the CMPs within their jurisdiction to account for inflation. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “2015 Act”)  1 amended the FCPIA Act to require federal agencies to make annual adjustments not later than January 15 of every year. 2 The Board is now issuing a new final rule to set the CMP levels pursuant to the required annual adjustment for 2025. The Board will apply these adjusted maximum penalty levels to any penalties assessed on or after January 13, 2025, whose associated violations occurred on or after November 2, 2015. Penalties assessed for violations occurring prior to November 2, 2015, will be subject to the amounts set in the Board's 2012 adjustment pursuant to the FCPIA Act. 3

Under the 2015 Act, the annual adjustment to be made for 2025 is the percentage by which the Consumer Price Index for the month of October 2024 exceeds the Consumer Price Index for the month of October 2023. On December 17, 2024, as directed by the 2015 Act, the Office of Management and Budget (OMB) issued guidance to affected agencies on implementing the required annual adjustment which included the relevant inflation multiplier. 4 Using OMB's multiplier, the Board calculated the adjusted penalties for its CMPs, rounding the penalties to the nearest dollar. 5

The 2015 Act states that agencies shall make the annual adjustment “notwithstanding section 553 of title 5, United States Code.” Therefore, this rule is not subject to the provisions of the Administrative Procedure Act (the “APA”), 5 U.S.C. 553, requiring notice, public participation, and deferred effective date.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires a regulatory flexibility analysis only for rules for which an agency is required to publish a general notice of proposed rulemaking. Because the 2015 Act states that agencies' annual adjustments are to be made notwithstanding section 553 of title 5 of United States Code—the APA section requiring notice of proposed rulemaking—the Board is not publishing a notice of proposed rulemaking. Therefore, the Regulatory Flexibility Act does not apply.

There is no collection of information required by this final rule that would be subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

For the reasons set forth in the preamble, the Board amends 12 CFR part 263 as follows:

On September 4, 2009, the Department of Labor (“DOL” or “Department”) issued a notice of proposed rulemaking (“NPRM”) in the Federal Register (“FR”) to amend its regulations regarding the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers. See Temporary Agricultural Employment of H-2A Aliens in the United States, 74 FR 45906 (Sept. 4, 2009) (“NPRM”). The NPRM was open for public comment for 45 days until October 5, 2009. See Temporary Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884 (Feb. 12, 2010) (“Final Rule”).

On February 12, 2010, DOL published a final rule in the FR that adopted much of the regulatory text proposed in the NPRM, with some important changes. See Final Rule, 75 FR at 6884. The Final Rule included improvements to the application processing procedures, worker protections, and program integrity measures. The Final Rule went into effect on March 15, 2010.

Since publication of the Final Rule, a question has been raised in litigation concerning whether a separate rule, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in the Non-Range Occupations in the United States, 88 FR 12760 (Feb. 28, 2023), was approved by the Attorney General in consultation with the Secretary of Labor and the Secretary of Agriculture. 8 U.S.C. 1188, Statutory Note. 1 Further, on November 25, 2024, the Secretary of Homeland Security, in consultation with the Secretary of Labor and Secretary of Agriculture, approved the Final Rule.

To resolve any possible uncertainty with respect to the Final Rule, the Department, through its Assistant Secretary for Employment and Training and its Administrator of the Wage and Hour Division, is ratifying the Final Rule. Under established case law, an agency may, through ratification, “purge[ ] any residual taint or prejudice left over from” a potential defect in a prior governmental action. 2 The Department is issuing this ratification out of an abundance of caution, and this ratification is not a statement that the Final Rule is invalid absent this ratification.

By virtue of the authority vested in the Secretary of Labor by law, including by the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1101 et seq. (“INA”), and as delegated to the Assistant Secretary for Employment and Training, 75 FR 66268, and the Administrator of the Wage and Hour Division, 75 FR 55352, we are affirming and ratifying a prior action by Jane Oates, Assistant Secretary for Employment and Training, and Nancy Leppink, Deputy Administrator of the Wage and Hour Division. On February 12, 2010, the Employment and Training Administration and the Wage and Hour Division published in the FR the Final Rule codifying amendments to the Department's regulations regarding the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers. 75 FR 6884 (Feb. 12, 2010).

The Final Rule was signed by Assistant Secretary Oates and Deputy Administrator Leppink. We have full and complete knowledge of the Final Rule action taken by former Assistant Secretary Oates and former Deputy Administrator Leppink. Subsequent to the Secretary of Homeland Security's documented approval of the Final Rule dated November 25, 2024, in consultation with the Secretary of Labor and Secretary of Agriculture, and out of an abundance of caution and to avoid any doubt as to its validity, we have independently evaluated the Final Rule and the basis for adopting it. We have determined that the amendments to the regulations in the Final Rule are consistent with the Secretary of Labor's statutory responsibility to certify that there are insufficient able, willing, and qualified U.S. workers available to perform the needed work and that the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed. We have also determined that the changes adopted in the Final Rule strike an appropriate balance between the statute's competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages of workers in the United States similarly employed by improving the H-2A application and temporary labor certification process, strengthening protections for workers, and enhancing program integrity measures. We also agree with the Department's certification that the Final Rule does not have a significant economic impact on a substantial number of small entities. See Final Rule, 75 FR at 6953.

Therefore, pursuant to our authorities as the Assistant Secretary for Employment and Training and the Administrator of the Wage and Hour Division, and based on our independent review of the action and the reasons for taking it, we hereby affirm and ratify the Final Rule, as of January 7, 2025, including all regulatory analysis certifications contained therein. This action is taken without prejudice to any right to litigate the validity of the Final Rule as approved and published on February 12, 2010. Nothing in this action is intended to suggest any legal defect or infirmity in the approval or publication of the Final Rule.

On July 26, 2019, the Department of Labor (“DOL” or “Department”) issued a notice of proposed rulemaking (“NPRM”) in the Federal Register (“FR”) to amend its regulations regarding the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers. See Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 84 FR 36168 (July 26, 2019) (“NPRM”). The NPRM was open for public comment for 60 days from July 26, 2019 until September 24, 2019. See id. at 36168.

On October 12, 2022, DOL published a final rule in the FR that adopted much of the regulatory text proposed in the NPRM, with some significant changes. Temporary Agricultural Employment of H-2A Nonimmigrants in the United States, 87 FR 61660 (Oct. 12, 2022) (“Final Rule”). 1 The Final Rule included improvements to the minimum standards and conditions of employment that employers must offer to workers, improvements to program integrity measures, such as program debarment for substantial violations of program requirements, revisions to the standards and procedures for determining prevailing wage rates, and revisions to modernize and simplify the temporary employment certification process. The Final Rule went into effect on November 14, 2022.

Since publication of the Final Rule, a question has been raised in litigation concerning whether a separate rule, Adverse Effect Wage Rate Methodology for the Temporary Employment of H-2A Nonimmigrants in the Non-Range Occupations in the United States, 88 FR 12760 (Feb. 28, 2023), was approved by the Attorney General in consultation with the Secretary of Labor and the Secretary of Agriculture. 8 U.S.C. 1188, Statutory Note. 2 With respect to the Final Rule, prior to its issuance in October 2022, the Final Rule was provided to the Departments of Homeland Security and Agriculture through the interagency review process prescribed by Executive Order 12866. On November 7, 2024, the Secretary of Homeland Security, in consultation with the Secretary of Labor and Secretary of Agriculture, approved the Final Rule.

To resolve any possible uncertainty with respect to the Final Rule, the Department, through its Assistant Secretary for Employment and Training and its Administrator of the Wage and Hour Division, is ratifying the Final Rule. Under established case law, an agency may, through ratification, “purge[ ] any residual taint or prejudice left over from” a potential defect in a prior governmental action. 3 The Department is issuing this ratification out of an abundance of caution, and this ratification is not a statement that the Final Rule is invalid absent this ratification.

By virtue of the authority vested in the Secretary of Labor by law, including by the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1101 et seq. (“INA”), and as delegated to the Assistant Secretary for Employment and Training, 75 FR 66268, and the Administrator of the Wage and Hour Division, 75 FR 55352, we are affirming and ratifying a prior action by Martin J. Walsh, Secretary of Labor. On October 12, 2022, the Employment and Training Administration and the Wage and Hour Division published in the FR the Final Rule codifying amendments to the Department's regulations regarding the certification of temporary employment of nonimmigrant workers employed in temporary or seasonal agricultural employment and the enforcement of the obligations applicable to employers of such nonimmigrant workers. 87 FR 61660 (Oct. 12, 2022).

The Final Rule was signed by Secretary Walsh. We have full and complete knowledge of the Final Rule action taken by former Secretary Walsh. Subsequent to the Secretary of Homeland Security's documented approval of the Final Rule dated November 7, 2024, in consultation with the Secretary of Labor and Secretary of Agriculture, and out of an abundance of caution and to avoid any doubt as to its validity, we have independently evaluated the Final Rule and the basis for adopting it. We have determined that the amendments to the regulations in the Final Rule are consistent with the Secretary of Labor's statutory responsibility to certify that there are insufficient able, willing, and qualified U.S. workers available to perform the needed work and that the employment of H-2A workers will not adversely affect the wages and working conditions of workers in the United States similarly employed. We have also determined that the changes adopted in the Final Rule strike an appropriate balance between the statute's competing goals of providing employers with an adequate supply of legal agricultural labor and protecting the wages of workers in the United States similarly employed by strengthening protections for workers, modernizing and simplifying the H-2A application and temporary labor certification process, and easing regulatory burdens on employers. We also agree with the Department's certification that the Final Rule does not have a significant economic impact on a substantial number of small entities. See 87 FR 61660, 61787.

Therefore, pursuant to our authorities as the Assistant Secretary for Employment and Training and the Administrator of the Wage and Hour Division, and based on our independent review of the action and the reasons for taking it, we hereby affirm and ratify the Final Rule, as of January 7, 2025, including all regulatory analysis certifications contained therein. This action is taken without prejudice to any right to litigate the validity of the Final Rule as approved and published on October 12, 2022. Nothing in this action is intended to suggest any legal defect or infirmity in the approval or publication of the Final Rule.

I. Legal Authority II. Background and Purpose III. Calculation of the 2025 Adjustments IV. Statutory and Executive Order Reviews A. Statutes 1. National Environmental Policy Act 2. Regulatory Flexibility Act 3. Paperwork Reduction Act 4. Unfunded Mandates Reform Act 5. Small Business Regulatory Enforcement Fairness Act 6. Congressional Review Act B. Executive Orders (E.O.) 1. Governmental Actions and Interference With Constitutionally Protected Property Rights (E.O. 12630) 2. Regulatory Planning and Review (E.O. 12866); Modernizing Regulatory Review (E.O. 14094); Improving Regulation and Regulatory Review (E.O. 13563) 3. Civil Justice Reform (E.O. 12988) 4. Federalism (E.O. 13132) 5. Consultation and Coordination With Indian Tribal Governments (E.O. 13175) 6. Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (E.O. 13211) I. Legal Authority

OCSLA authorizes the Secretary of the Interior (the Secretary) to impose a daily civil monetary penalty for a violation of OCSLA or its implementing regulations, leases, permits, or orders. It also directs the Secretary to adjust the maximum penalty at least every 3 years to reflect any inflation increase in the Consumer Price Index. 43 U.S.C. 1350(b)(1). Similarly, OPA authorizes civil monetary penalties for failure to comply with OPA's financial responsibility provisions or its implementing regulations. 33 U.S.C. 2716a(a). OPA does not include a maximum daily civil penalty inflation adjustment provision, but such adjustment is authorized by the Improvements Act. See 28 U.S.C. 2461 note.

The Improvements Act  1 requires that Federal agencies publish inflation adjustments to their civil monetary penalties in the Federal Register not later than January 15 annually. 2 The purposes of these inflation adjustments are to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes. Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, sec. 2 (codified at 28 U.S.C. 2461 note).

BOEM implemented the 2024 inflation adjustment for its civil monetary penalties through a final rule entitled, “2024 Civil Penalties Inflation Adjustments for Oil, Gas, and Sulfur Operations in the Outer Continental Shelf,” which was published in the Federal Register on January 25, 2024 at 89 FR 4815. That rule accounted for inflation for the 12-month period between October 2022 and October 2023.

OMB memorandum M-25-02  3 reiterates agency responsibilities under the Improvements Act. Such responsibilities include identifying applicable penalties and performing the annual adjustment; publishing revisions to regulations to implement the adjustment in the Federal Register ; applying adjusted penalty dollar amounts; and performing agency oversight of inflation adjustments.

Pursuant to the Improvements Act and OMB M-25-02, this final rule implements BOEM's 2025 inflation adjustments to OCSLA and OPA maximum daily civil monetary penalties. A proposed rule is unnecessary as the Improvements Act expressly exempts annual civil penalty inflation adjustments from the Administrative Procedure Act's (APA) notice of proposed rulemaking, public comment, and standard effective date provisions. Improvements Act, Public Law 114-74, sec. 701(b)(1)(D); APA, 5 U.S.C. 553. 4

On July 22, 2021, BOEM issued a final rule entitled, “Maximum Daily Civil Penalty Amounts for Violations of the Federal Oil and Gas Royalty Management Act” (86 FR 38557). The rule amended BOEM's regulations that set maximum daily civil penalty (MDCP) amounts for violations of the Federal Oil and Gas Royalty Management Act (FOGRMA). The amendment cross-referenced BOEM's regulations to the Office of Natural Resources Revenue (ONRR) regulations that also set MDCP amounts for FOGRMA violations. This cross-reference ensured consistency between BOEM's FOGRMA MDCP amounts and ONRR's FOGRMA MDCP amounts. Because ONRR annually adjusts its MDCP for inflation, the cross-referencing rule also ensured consistent compliance with the Improvements Act and related OMB guidance while reducing possible confusion among regulated parties and unnecessary duplication of effort and costs to the Federal Government. The cross-reference to ONRR's regulations relieves BOEM of the necessity to adjust its FOGRMA MDCP.

In accordance with the Improvements Act, BOEM determined that OCSLA and OPA maximum daily civil monetary penalties require annual inflation adjustments. BOEM issues this final rule adjusting those penalty amounts for inflation through October 2024. The annual inflation adjustment is based on the percent change between the Consumer Price Index for All Urban Consumers (CPI-U) for the October preceding the date of the adjustment and the prior year's October CPI-U. Consistent with OMB M-25-02, the 2025 inflation adjustment multiplier can be calculated by dividing the October 2024 CPI-U by the October 2023 CPI-U. In this case, October 2024 CPI-U (315.664)/October 2023 CPI-U (307.671) = 1.02598.

For 2025, BOEM multiplied the current OCSLA maximum daily civil monetary penalty of $54,352 by the multiplier 1.02598, which equals $55,764.06. The Improvements Act requires that the resulting amount be rounded to the nearest dollar. Accordingly, the 2025 adjusted OCSLA maximum daily civil monetary penalty is $55,764.

For 2025, BOEM multiplied the current OPA maximum daily civil penalty amount of $57,617 by the multiplier 1.02598, which equals $59,113.89. The Improvements Act requires that the resulting amount be rounded to the nearest dollar. Accordingly, the 2025 adjusted OPA maximum daily civil monetary penalty is $59,114.

The adjusted penalty amounts take effect immediately upon publication of this rule. Under the Improvements Act, the adjusted amounts apply to civil penalties assessed after the date the increase takes effect, even if the associated violation predates the increase.

Table 1 summarizes BOEM's 2025 maximum daily civil monetary penalties for each OCSLA and OPA violation.

This rule does not constitute a major Federal action under the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq. ) because the civil penalty adjustments are required by law and the Bureau has no control or responsibility for the action other than ministerial ( see 43 CFR 46.100(a); see also 40 CFR 1508.1(w)(2)). The Improvements Act requires BOEM to annually adjust the amounts of its civil penalties to account for inflation as measured by the Department of Labor's Consumer Price Index. Accordingly, BOEM has no discretion in the execution of the civil penalty adjustments reflected in this final rule. Because this rule is not a major Federal action, it is therefore not subject to the requirements of NEPA. Even if this were a discretionary action subject to NEPA, which it is not, a detailed statement under NEPA would not be required because, as a regulation of an administrative nature, this rule would be covered by a categorical exclusion ( see 43 CFR 46.210(i)). Moreover, BOEM determined that the rule does not implicate any of the extraordinary circumstances listed in 43 CFR 46.215 that would prevent reliance on the categorical exclusion. Therefore, a detailed statement under NEPA is not required.

The Regulatory Flexibility Act (RFA, 5 U.S.C. 601 et seq. ) requires an agency to prepare a regulatory flexibility analysis for all rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. However, the RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). The Improvements Act expressly exempts these annual inflation adjustments from the requirement to publish a proposed rule for notice and comment. Improvements Act, Public Law 114-74, sec. 701(b)(1)(D); OMB M-25-02 at 3-4. Thus, the RFA does not apply to this rulemaking.

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

This rule does not impose an unfunded mandate on State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. The rule does not have a significant or unique effect on State, local, or Tribal governments, or on the private sector. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This rule is not a major rule under 5 U.S.C. 804(2). This rule:

(a) will 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; and

(c) will 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.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ) and OMB guidance, 5 this rule is not a major rule, as defined by that act. 5 U.S.C. 804(2).

This rule does not effect a taking of private property or otherwise have takings implications under E.O. 12630. Therefore, a takings implication assessment is not required.

E.O. 12866, as amended by E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA determined that annual civil penalty inflation adjustment rules are not significant if they exclusively implement the annual inflation adjustment consistent with OMB guidance and have an annual impact of less than $200 million. See OMB Memorandum M-25-02 at 3-4. This rule meets those conditions and, thus, is not a significant rule.

E.O. 13563 reaffirms the principles of E.O. 12866, as amended by E.O. 14094, while calling for improvements in the Nation's regulatory system to reduce uncertainty and to promote predictability and for the use of the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 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. E.O. 13563 further emphasizes 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. However, BOEM is using neither science nor public participation in this rulemaking. Congress directed agencies to adjust the maximum daily civil penalty amounts using a particular equation without public participation. BOEM does not have discretion to use any other factor in the adjustment. BOEM has developed this rule in a manner consistent with the requirements in E.O. 13563 to the extent relevant and feasible given the limited discretion provided to agencies under the Improvements Act.

This rule complies with the requirements of E.O. 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 section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rule merely adjusts the dollar amount of civil monetary penalties that BOEM may impose on oil and gas lessees, grant holders, and operators on the Outer Continental Shelf and has no effects on any actions of State or local governments. Therefore, a federalism summary impact statement is not required.

The Department of the Interior and BOEM strive to strengthen their government-to-government relationships with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of the Tribes' right to self-governance and Tribal sovereignty. BOEM evaluated this rule under the Department of the Interior's consultation policy, Departmental Manual part 512, chapters 4 and 5, and E.O. 13175. BOEM determined that this rule has no substantial direct effects on federally recognized Indian Tribes or Alaska Native Claims Settlement Act Corporations and that consultation under existing Department and BOEM policies is not required.

This rule is not a “significant energy action” under the definition of that term found in E.O. 13211. Therefore, a statement of energy effects is not required.

This action by the Principal Deputy Assistant Secretary is taken pursuant to an existing delegation of authority.

For the reasons stated in the preamble, BOEM amends 30 CFR parts 550 and 553 as follows:

I. Background on the Wyoming Program II. Submission of the Amendment III. OSMRE's Findings IV. Summary and Disposition of Comments V. OSMRE's Decision VI. Statutory and Executive Order Reviews I. Background on the Wyoming Program

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, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7).

On the basis of these criteria, the Secretary of the Interior conditionally approved the Wyoming program on November 26, 1980. You can find background information on the Wyoming program, including the Secretary's findings, the disposition of comments, and conditions of approval in the November 26, 1980, Federal Register (45 FR 78637). You can also find later actions concerning Wyoming's program and program amendments at 30 CFR 950.11, 950.12, 950.15, 950.16, and 950.20.

By letter dated June 4, 2021 (Administrative Record No. WY-49-01), Wyoming LQD sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Wyoming submitted the amendment in response to legislative changes made through Wyoming House Bill HB0129 during the 2020 legislative session, to Wyoming Statute (W.S.) § 35-11-402(a)(xiii). These changes outlined rules regarding how noncoal, non-mining waste, in the form of inert decommissioned wind turbine blades and towers, could be used as backfill in open surface coal mine pits in order to facilitate disposal of those materials. The proposed revisions to Chapter 2 of the Program allow for inert wind turbine blades and towers to be placed in the final pit voids or end walls of surface coal mining operations during reclamation. In addition, Wyoming has proposed grammatical changes to Chapter 2 as well as minor edits to provide consistency with the Wyoming Secretary of State's Rules on Rules.

Wyoming stated in its submission that the Wyoming Legislature tasked LDQ with developing rules and regulations about the disposal of noncoal, non-mining-generated solid wastes at surface coal mining and reclamation operations because of the large volume of decommissioned wind turbine blades and towers, a lack of scalable recycling methods to facilitate their disposal, and limited guidance in SMCRA about this type of disposal. Wyoming's submission seeks to address issues associated with the resulting stockpile of decommissioned wind turbine blades and towers as a result of wind energy generation, upgrades, and routine maintenance.

We announced receipt of the proposed amendment in the August 4, 2021, Federal Register (86 FR 41907). With that announcement, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the proposed amendment. We did not hold a public hearing or meeting because none was requested. We did not receive any comments regarding the amendment. The public comment period ended on September 3, 2021.

On September 27, 2024, OSMRE sent a letter to the Environmental Protection Agency's Office of Land and Emergency Management (EPA) for comment on Wyoming's proposed amendment. On October 24, 2024, EPA responded that it does not see a conflict between Wyoming's proposed revisions and the Resource Conservation and Recovery Act (RCRA) as long as the facilities are permitted and subject to Wyoming's Construction and Demolition Landfill Regulations under Chapter 4 of Wyoming's Solid Waste Division Rules, and meet the Federal criteria at 40 CFR 257, Subpart A. To further assist us in making a final determination on Wyoming's submission, by letter dated November 26, 2024, OSMRE sent Wyoming a letter requesting clarification on certain issues (Administrative Record No. WY-049-12; www.regulations.gov Docket No. OSM-2021-0003-0009). Wyoming responded by letter dated December 3, 2024 (“Clarification Letter”) (Administrative Record No. WY-049-13; www.regulations.gov Docket No. OSM-2021-0003-0010).

We are approving the revisions to Wyoming's State program. We made the following findings about Wyoming's amendment as provided under SMCRA and the Federal regulations at 30 CFR 730.5, 732.15, and 732.17.

In these sections, Wyoming proposed grammatical changes to Chapter 2 as well as minor edits to provide consistency with the Wyoming Secretary of State's Rules on Rules. These revisions were non-substantive changes. Therefore, we are approving Wyoming's proposed changes to WCWR 020-0006-2 Section 1(a); Section 2(a); Section 3 (b)-(d), (f), (j)-(k); Section 4(a); and Section 5(a) because they are consistent with SMCRA and no less effective than the Federal regulations.

Wyoming's proposed rule changes WCWR 020-0006-2 Section 6(b)(ii), primarily by adding paragraph (F), which describes what information is required in the reclamation plan where an operator intends to dispose of “inert decommissioned wind turbine blades and towers” as backfill. Neither SMCRA nor the Federal regulations expressly provide for the disposal of noncoal, non-mining solid waste, such as inert decommissioned wind turbine blades and towers, on surface coal mining and reclamation operations as part of reclamation. The lack of Federal counterpart, however, does not automatically determine whether Wyoming's proposed changes to its State program are consistent with SMCRA and no less effective than the Federal regulations. Any material placed in mine pits or otherwise used to reclaim a permitted mine site must comply with SMCRA permitting requirements and performance standards, regardless of whether the material originates within the permit area or whether it is imported from outside the permit area, and the regulatory authority has the authority to establish monitoring and analysis requirements for those materials. See, e.g., Pacific Coal Co. v. OSM, Civ. No. 03-0260Z, (W.D. Wash. Feb. 2, 2004). So, to ensure Wyoming's proposed amendment meets our approval standards, we must conduct a comparison of Wyoming's proposed rules to SMCRA and the Federal regulations.

WCWR 020-0006-2 Section 6(b)(ii)(F) has six requirements, which specify: (I) that “only inert base material from decommissioned wind turbine blades and towers” are allowed to be disposed of in the backfill; (II) “[n]acelles and nacelle housings” and “mechanical, electrical, and other materials” are not permitted to be disposed of in the backfill and must be removed before disposal; (III) as described in more detail below, the material disposed of may only be placed in approved locations that meet certain criteria with certain disclosures; (IV) certain placement requirements, including how the material must be placed in the pits and groundwater monitoring; (V) final surface reclamation requirements; and (IV) the operator pay Wyoming, on a quarterly basis, 25 percent of any revenues collected by the operator for disposal of this material.

WCWR 020-0006-2 Section 6(b)(ii)(F)(I) and (II) simply describe the types of noncoal, non-mining solid wastes that may be placed in the backfill under this section. As proposed, WCWR 020-0006-2 Section 6(b)(ii)(F)(III) contains six requirements for locations where inert decommissioned wind turbine blades and towers are authorized as part of the backfill. The first two requirements provide the location within the backfill area in which inert decommissioned wind turbine blades and towers may be placed. Specifically, these materials can be placed in “end walls” or “final pit voids” and placed “a minimum of twenty feet above the pre-mining potentiometric surface of the coal aquifer and a minimum of twenty feet below the final regraded spoils surface[.]” WCWR 020-0006-2 Section 6(b)(ii)(F)(III)(1.) and (2.)

Neither SMCRA nor the Federal regulations nor Wyoming's regulations contain definitions of “end wall” or “final pit voids.” However, the end wall and final pit are commonly understood to refer to the final cut of an open pit or the last pit excavation in a mining area. Therefore, OSMRE interprets this to mean that Wyoming intends to allow disposal of certain types of inert decommissioned wind turbine blades and towers in the open space, or void, left in the final mining cut and not the first or middle cuts on a mine site.

Similarly, SMCRA, the Federal regulations, and Wyoming's regulations do not contain a definition or explanation of the phrase “pre-mining potentiometric surface of the coal aquifer.” OSMRE interprets this to mean that any disposal would only be allowed in the area 20 feet above the pre-mining potentiometric surface of the coal aquifer. If the disposal is occurring above a pre-mining unconfined coal aquifer, OSMRE interprets this to mean that the material would be placed at least 20 feet above the top of the coal seam aquifer. It is OSMRE's understanding that this is designed to ensure that when groundwater returns to the backfilled area, the wind turbines and blades will not come in contact with groundwater. As such, we find that these provisions are in accordance with SMCRA and consistent with the Federal regulations; any implementation of this phrase by Wyoming that is inconsistent with this interpretation may require OSMRE to reevaluate this approval.

Because SMCRA and the Federal regulations do not contemplate disposal of any noncoal, non-mine waste in backfill areas on SMCRA sites, there are no existing corresponding statutory or regulatory requirements for this type of disposal. While this type of disposal is not explicitly authorized under SMCRA, the fact that Wyoming's proposed changes do not exempt the areas accepting this waste material from any other requirements of either SMCRA or the Federal regulations indicates that the practice should not result in mining or reclamation that is not in accordance with the minimum requirements of SMCRA or inconsistent with the Federal regulations. Furthermore, the proposed changes requiring that the specific types of waste be placed only in limited areas, a minimum of 20 feet above the pre-mining potentiometric surface of the coal aquifer and a minimum of 20 feet below the final regraded spoils surface should reduce the potential for this material to come into contact with water. This requirement should reduce the potential for leachate and not conflict with the existing SMCRA performance standards.

WCWR 020-0006-2 Section 6(b)(ii)(F)(III) sections (3.) and (5.) require that the backfill disposal location be mapped with a legal description, with backfill locations and groundwater monitoring locations updated annually, and that a disclosure be placed on the real property deed for the described lands before final bond release. Again, because SMCRA and the Federal regulations do not contemplate disposal of such noncoal, non-mine waste in backfill areas on SMCRA sites, there are no corresponding Federal statutory or regulatory requirements for this type of disposal under SMCRA. Instead, OSMRE evaluated this proposal to ensure that Wyoming's proposed changes are in accordance with SMCRA and consistent with the Federal regulations, which raised two potential concerns.

First, the wording of WCWR 020-0006-2 Section 6(b)(ii)(F) appears to require all applicants to include a plan to dispose of inert decommissioned towers and blades in their reclamation plan. For example, WCWR 020-0006-2 Section 6(b)(ii)(B) and (C) each contain a preface that reclamation plans for terraces & benches and permanent water impoundments are required only when those features “are proposed” by the applicant; in contrast, WCWR 020-0006-2 Section 6(b)(ii)(F) has no such preface. In the Clarification Letter, Wyoming stated that disposal of inert decommissioned wind turbine blades and towers on a SMCRA mine site is “a voluntary requirement” and will only be included in the reclamation plan if “the operator chooses to accept and use the towers and blades as backfill.”

Second, the proposed rules do not address what would happen if a mineral or surface owner does not consent to a proposal to place inert decommissioned wind turbine blades and towers in the excavated pits. In the Clarification Letter, Wyoming responded that: “[t]he rules apply regardless of surface ownership (private, state or federal) but surface owner consent would be required before the disposal of any wind turbine blades or towers would be allowed under WS § 35-11-406(b)(xi) and (xii).” See, e.g., WS § 35-11-406(b)(xii) (which “requires an instrument of consent from the surface landowner, if different from the owner of the mineral estate, be included to the mining and reclamation plans. If consent cannot be obtained, the applicant can request a hearing on the issue before the Environmental Quality Council. The Council is required to issue an order in lieu of consent if certain findings are made.”). Wyoming also noted that WCWR 020-0006-2 Section 6(b)(ii)(F)(III)(5.) would require that where inert decommissioned wind turbine blades and towers have been disposed of on a SMCRA site, a disclosure of such must be placed on the real property deed, “which would also require surface owner consent.” Furthermore, Wyoming has clarified that consent from surface owners, including the Federal government, is required before such disposal can occur. We note, however, that Federal lands, as defined in SMCRA, applies to “any land, including mineral interests, owned by the United States . . . .” 30 U.S.C. 1291(4). To the extent that Wyoming seeks to apply this rule to Federal lands (including lands with either Federal surface or mineral ownership) through its State-Federal Cooperative Agreement (30 CFR 950.20), Wyoming must receive all necessary Federal agency approvals before any disposal occurs.

After clarification of these two points, we find that these provisions are in accordance with SMCRA and consistent with the Federal regulations; any implementation of this regulations by Wyoming that is inconsistent with these clarifications may require OSMRE to reevaluate this approval.

WCWR 020-0006-2 Section 6(b)(ii)(F)(III)(4.) allows the reclaimed land above an approved backfill disposal location to be designated as a joint or alternative land use as long as the applicant provides the required demonstration in Section 6(b)(x)(C) of the same Chapter and the disposal supports the approved land use as required in Section 6(b)(x).

Under the Federal regulations at 30 CFR 816.133, all disturbed lands are required to be restored in a timely manner to conditions capable of supporting the uses they were capable of supporting before any mining or to a higher or better use. If the postmining land use is different than the pre-mining uses of land, a regulatory authority may approve an “alternative land use” if it is a higher or better use. Wyoming's currently approved regulations at WCWR 020-0006-2 Section 6(b)(x)(B)-(C) are substantially similar to the Federal regulations. Wyoming's proposed amendment states that “[t]he approved backfill disposal location may be designed as a joint or alternative land use in the approved reclamation plan (WCWR 020-0006-2 Sec. 6(b)(x)(B)). Approval of alternative land uses requires a demonstration as required in WCWR 020-0006-2 Sec. 6(b)(x)(C) [of WYDEQ's Coal Rules]. The disposal of inert towers and blades must support the postmining land use identified in accordance with the requirements of Section 6(x) of this Chapter.” In its Clarification Letter, Wyoming confirmed that the inert decommissioned wind turbine tower and blade disposal will occur contemporaneously with reclamation and that it is not creating a new postmining land use for waste disposal areas. Specifically, Wyoming noted that the wind turbine blades and towers “would only be part of the backfill plan and not contemporaneous with final reclamation.”

We understand Wyoming's response to mean, as required by the proposed changes to their reclamation plan requirements, wind turbine blade and tower disposal would only occur during the backfill stage of the reclamation once the operation has met an end wall or final void. As required by the performance standards in both the Federal regulations at 30 CFR 816.100 and the Wyoming regulations at WCWR 020-0006-4 Section 2(b)(i), all coal mine operators are required to reclaim land as contemporaneously as practicable with mining operations, including but not limited to backfilling, grading, topsoil replacement, and revegetation. Nothing in Wyoming's proposed amendment would remove or alter the existing contemporaneous reclamation requirement from Wyoming's performance standards. Operators who elect to dispose of wind turbine blades and towers must still reclaim their land as contemporaneously as possible with their mining operation. Thus, with this understanding, Wyoming's proposed amendment is in accordance SMCRA and consistent with the Federal regulations in relation to contemporaneous reclamation requirements.

WCWR 020-0006-2 Section 6(b)(ii)(F)(III)(6.) requires that any “backfill disposal location approved by the Division shall comply with Chapter 4, Section 4 of the Solid and Hazardous Waste Division Rules. As enacted in 1977, SMCRA states that “[n]othing in this Act shall be construed as superseding, amending, modifying, or repealing . . . The Solid Waste Disposal Act . . .” 30 U.S.C. 1292(a)(5). One year prior, RCRA amended the Solid Waste Disposal Act on October 21, 1976. Public Law 94-580, Oct. 21, 1976, 90 Stat. 2795. Therefore, SMCRA does not permit an action that has the effect of superseding, amending, modifying, or repealing RCRA or the Solid Waste Disposal Act.

In Wyoming's June 4, 2021, submission letter for this proposed amendment, Wyoming stated that its proposed rules for the disposal of decommissioned inert towers and blades would be compliant with the Wyoming Solid Waste Diversion Rules Chapter 4 Construction and Demolition Landfill Regulations. However, Wyoming's proposed rules do not require a permit under the Construction and Demolition Landfill Regulations and only provide cross-references to Chapter 4, Sections 4 and 8(b)(iv)(A) of the Solid and Hazardous Waste Division Rules, which are subsets of Wyoming's Construction and Demolition Landfill within WCWR 020-0009-4 Section 2(a) and the Federal requirements of 40 CFR part 257, subpart A.

OSMRE acknowledges that an LQD permit issued pursuant to SMCRA can, in certain circumstances, substitute for the separate permit required by Wyoming's Construction and Demolition Landfill requirements. As noted earlier and as discussed below under “Section IV. Summary and Disposition of Comments,” OSMRE sought consultation from EPA because Wyoming's proposal would authorize disposal of waste material normally regulated under RCRA on SMCRA sites. EPA's response indicated that a facility receiving decommissioned inert towers and blades, including SMCRA coal mines, would need to meet all requirements of Wyoming's Construction and Demolition Landfill regulations within WCWR 020-0009-4, Section 2(a), and the Federal criteria at 40 CFR part 257, subpart A. The EPA notes that Section 2(a) of Wyoming's Construction and Demolition Landfill regulations requires RCRA permit applications to contain applicable information related to Sections 3 through 17, which include criteria for the location, design and construction, operating, monitoring, and corrective action standards, among others. The EPA concluded that it does not see a conflict between Wyoming's proposed rule and the RCRA program, so long as these proposed rules are implemented such that they meet Wyoming's Construction and Demolition Landfill regulations within WCWR 020-0009-4, Section 2(a) and the Federal requirements of 40 CFR part 257, subpart A.

In its Clarification Letter, Wyoming stated that “[a]lthough specific sections of Solid Waste Rule, Chapter 4 are listed in the Land Quality Rule, facilities are required to meet all applicable standards in all rules.” Based on this representation that all facilities, including SMCRA sites receiving wind turbine and blade waste materials, are required to satisfy all Construction and Demolition Landfill regulations within WCWR 020-0009-4 Section 2(a) and the Federal requirements of 40 CFR part 257, subpart A, OSMRE determined that these provisions would be in accordance with SMCRA and consistent with Federal regulations; any implementation of this section that is inconsistent with this interpretation may require OSMRE to reevaluate its approval.

As proposed, WCWR 020-0006-2 Section 6(b)(ii)(F)(IV) contains three closure requirements for locations where inert decommissioned wind turbine blades and towers are authorized as part of the backfill. The first outlines how this material should be placed in lifts to prevent subsidence, the second outlines groundwater monitoring requirements, and the third relates to bond releases. WCWR 020-0006-2 Section 6(b)(ii)(F)(IV).

WCWR 020-0006-2 Section 6(b)(ii)(F)(IV)(1.) requires that inert decommissioned wind turbine blades and towers be placed in lifts not to exceed 10 feet and covered with a minimum of 15 feet of suitable backfill “dry tomb placement.” The Federal regulations at 30 CFR 780.18(b)(3) require a plan for backfilling, soil stabilization, grading, and compacting, with contour maps or cross sections to show the anticipated final surface configuration in accordance with 30 CFR 816.102. Federal regulation 30 CFR 816.102(c) requires the operator to compact spoil to ensure stability or to prevent leaching of toxic material. Under Wyoming's rules at WCWR 020-0006-2 Section 6(b)(ii)(E), a mine operator's reclamation plan must be designed to ensure stability of the reclaimed land surface.

A lift is a method in which an operator puts dirt above and below an area or object. Typically, these areas are compacted. This placement configuration stabilizes the surrounding area and helps to prevent leaching of material throughout the surrounding soil; thus, assuming the lift uses compacted dirt, this section is in accordance with SMCRA and consistent with the Federal regulations.

While lifts are helpful in preventing subsidence, Wyoming's proposed amendment does not specify whether this proposed regulation requires the lifts to be compacted or if loose fill is allowed. Wyoming's proposed regulations do not address if or how inert decommissioned wind turbine blades and towers will be processed before disposal. Inert towers and blade casings are generally rigid and hollow and are made of fiberglass and epoxy resin. While the material is durable, over an extended period of time it will break down. In addition, unprocessed inert turbine blades and casings are hollow, so the breakdown of material could potentially cause soil instability and subsidence, which could be worsened if multiple inert turbine blades and towers are stacked together. Therefore, there is potential that surface and postmining land use activities will be affected by a subsidence issue in the future, after bond release.

In its Clarification Letter, Wyoming stated that Chapter 4, Section 2(b) of the Wyoming's Coal Rules (Coal Chapter 2, Section 6(b)(ii)(F)(IV)(1)), which details the requirements for a plan for backfilling, grading, and contouring all affected lands, requires an applicant to provide procedures for assuring stability of the reclaimed land surface. Wyoming's response indicates that Wyoming intends for its rules to require an operator to reclaim areas, including wind turbine disposal sites, in a way that prevents subsidence. Thus, Wyoming's proposed rules are in accordance with SMCRA and consistent with the Federal regulations in preventing subsidence in reclaimed areas; any implementation of this section that is inconsistent with this interpretation may cause OSMRE to reevaluate its approval.

WCWR 020-0006-2 Section 6(b)(ii)(F)(IV)(2.) and (3.) require that the groundwater monitoring plan required by Wyoming's existing coal rules also include monitoring wells to be installed and monitored in accordance with Chapter 4, Section 8(b)(iv)(A) of the Solid and Hazardous Waste Division Rules, and that this groundwater monitoring and vegetation monitoring continue until final bond release.

Under SMCRA at 30 U.S.C. 1259, a coal mine operator is required to obtain a performance bond once their permit has been approved by the regulatory authority. The amount of the bond is calculated by determining the cost to fully reclaim a mine site. To obtain full release of its performance bond, an operator must meet the requirements of 30 CFR 800.40, which includes rules for re-vegetation and water monitoring, among others. Wyoming has equivalent requirements under its own Coal Program at WCWR 020-0006-15. Wyoming's proposed amendment does not explicitly require recalculating bond amounts to account for potential impacts or uncertainty related to the disposal of inert decommissioned wind turbines and towers on their permit.

While Wyoming did not specifically indicate how the proposed amendment will affect its bonding calculations, Wyoming reiterated in its Clarification Letter that operators are required to meet all of the existing and approved bonding rules in WCWR 020-0006-11, as well as those prescribed by SMCRA and the Federal regulations. Under Wyoming's existing rules, if disposal of wind turbine blades or towers caused unanticipated impacts, Wyoming would be required to adjust the bond amounts and order an operator to correct the issue without any further revision to its regulations.

Wyoming's proposal adds the requirement that any additional groundwater monitoring requirements under Chapter 4, Section 8(b)(iv)(A) of the Solid and Hazardous Waste Division Rules be added to LDQ's permit. Wyoming's proposal does not remove any existing groundwater monitoring requirements or bond requirements already approved by OSMRE. Consequently, Wyoming's proposed amendment is in accordance with SMCRA and consistent with the Federal regulations with regard to groundwater monitoring and bonding.

As proposed, WCWR 020-0006-2 Section 6(b)(ii)(F)(V) contains two final surface reclamation requirements. First, Section 6(b)(ii)(F)(V)(1.) requires that the final reclamation surface must blend with the surrounding mine reclamation and have a permanent vegetative cover in accordance with Chapter 4, Section 2(d) of the Division's Coal Chapter 4 requirements. Second, Section 6(b)(ii)(F)(V)(2.) requires that the final reclamation must drain properly and not impound water in accordance with the Division's Coal Chapter 4 requirements.

Under the Federal regulations at 30 CFR 816.102, areas disturbed by surface coal mining operations must be backfilled and graded to achieve approximate original contour (AOC), except in limited cases. Wyoming's regulations, at WCWR 020-0006-4 Sec. 2 (b)(iii), also require all affected lands to be returned to AOC, with some exceptions. Wyoming defines AOC to mean “surface configuration achieved by backfilling and grading of the mined areas so that the reclaimed land surface closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain.” WCWR 020-0006-1 Sec. 2 (h). Under its proposed regulations for the disposal of inert towers and blades within surface coal mining sites, Wyoming would require the reclaimed surface to not exceed the approximate pre-mining slopes, WCWR 020-0006-2 Sec. 6 (b)(ii)(D), and the lands to blend with the surrounding mine reclamation. WCWR 020-0006-2 Sec. 6 (b)(ii)(F)(V)(1). To clarify this matter, we asked Wyoming if it could describe how its proposed regulations will ensure that the surface configuration achieved by backfilling and grading of the areas receiving inert towers and blades will closely resemble the general surface configuration of the land prior to mining and blend into and complement the drainage pattern of the surrounding terrain. (Administrative Record No. WY-049-12).

In its Clarification Letter, Wyoming confirmed that the requirements in Sections 6(b)(ii)(F)(V)(1.) and (2.) are in addition to the requirement that the entire mine, including areas receiving disposal of inert towers and blades, must achieve approximate original contour as required by Chapter 4, Section 2(b)(iii) of the Division's Coal Rules. Because this provision does not remove any existing requirements related to achieving approximate original contour and only adds the requirement that the disposal areas must blend with the surrounding mine and drain properly, Wyoming's proposed amendment is in accordance with SMCRA and consistent with the Federal regulations in ensuring that these sites will be reclaimed to achieve approximate original contour.

As explained above, with the information contained in its initial submission and the Clarification Letter, we conclude that the proposed amendment is in accordance with SMCRA and consistent with the Federal regulations. We therefore approve Wyoming's changes to its State program.

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

On June 16, 2021, 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 Wyoming program (Administrative Record No. WY-49-04). 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 Wyoming 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 June 16, 2021, under 30 CFR 732.17(h)(11)(i), we requested comments from EPA Region 8 on the amendment (Administrative Record No. WY-049-04). The EPA did not respond to this request.

OSMRE identified that Wyoming's proposed amendment may have RCRA implications because Wyoming's proposal would authorize the disposal of waste material normally regulated under RCRA in SMCRA sites. So, pursuant to 30 CFR 732.17(h)(11)(i), on September 27, 2024, we sent a letter to the EPA's Office of Land and Emergency Management requesting comment. (Administrative Record No. WY-049-07). The EPA responded on October 24, 2024. (Administrative Record No. WY-049-10). These letters are posted on www.regulations.gov (Docket Nos. OSM-2021-0003-00007 and OSM-2021-0003-0008).

The EPA commented that, under RCRA, the EPA establishes a national minimum standard for non-hazardous waste, the states are delegated the lead role in overseeing the disposal of non-hazardous waste, and the generator of waste is ultimately responsible for determining whether the waste qualifies as non-hazardous. The EPA explained that, if wind turbine blades and towers are appropriately characterized as non-hazardous waste and no other waste is accepted at these wind turbine disposal facilities, then such facilities would be subject to 40 CFR part 257, subpart A, entitled “Classification of Solid Waste Disposal Facilities and Practices.”

As explained in more detail above, the EPA interpreted Wyoming's proposed amendment to mean that the wind turbine disposal facilities are permitted and subject to Wyoming's Construction and Demolition Landfill Regulations under Chapter 4 of Wyoming's Solid Waste Division Rules. Accordingly, a facility under these proposed rules would need to meet both the Wyoming criteria and Federal criteria at 40 CFR part 257, subpart A. The EPA concluded its comment by stating that, so long as these criteria are met, it does not anticipate a conflict between Wyoming's proposed amendments and RCRA.

OSMRE appreciates EPA's response. As explained above, SMCRA provides that nothing in SMCRA can be construed as superseding, amending, modifying, or repealing various environmental laws, including the Solid Waste Disposal Act, which RCRA amended. In its June 4, 2021, submission letter for this proposed amendment, Wyoming stated that its proposed rules for the disposal of decommissioned inert towers and blades would be compliant with Wyoming Solid Waste Diversion Rules Chapter 4, “Construction and Demolition Landfill Regulations.” In our November 26, 2024, letter to Wyoming, we asked Wyoming to describe how its proposed regulations will comply with all of Chapter 4 of Wyoming's Solid Waste Diversion Rules. Wyoming's Clarification Letter stated: “The standards found in Wyoming Solid Waste Rule Chapter 4 are state standards and there is no federal oversight for this type of waste disposal under [RCRA] and as verified in US EPA's October 24, 2024, letter. Although specific sections of Solid Waste Rule, Chapter 4 are listed in the Land Quality Rule, facilities are required to meet all applicable standards in all rules.”

Based on EPA's response and Wyoming's commitment that “facilities are required to meet all applicable standards in all rules[,]” we conclude that this amendment does not supersede, amend, modify, or repeal RCRA so long as the disposal facilities authorized under this amendment are permitted and subject to all of Wyoming's Construction and Demolition Landfill Regulations under Chapter 4 of Wyoming's Solid Waste Division Rules and meet the Federal criteria at 40 CFR part 257, subpart A.

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 June 16, 2021, we requested comments on Wyoming's amendment (Administrative Record No. WY-054-04). We did not receive comments from the SHPO or ACHP. Nevertheless, OSMRE determined there will be no effect on historic or cultural resources as a result of this amendment because wind turbine blades and towers will be disposed of in pits as backfill material within the footprint of areas disturbed by coal mining activities.

Based on the above findings, we are approving Wyoming's amendment submitted to us on June 4, 2021. To implement this decision, we are amending the Federal regulations at 30 CFR part 950, which codify decisions concerning the Wyoming program. In accordance with the Administrative Procedure Act, this rule will take effect 30 days after the date of publication. 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. SMCRA requires consistency of State and Federal standards.

This rule would not effect a taking of private property or otherwise have taking implications that would result in private property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required.

Executive Order 12866, as amended by Executive Order 14094, provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance dated October 12, 1993 (OMB Memo M-94-3), the approval of state program amendments is exempted from OMB review under Executive Order 12866, as amended by Executive Order 14094. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.

The Department of the Interior has reviewed this rule as required by section 3 of Executive Order 12988. The Department determined that this Federal Register document meets the criteria of Section 3 of Executive Order 12988, which is intended to ensure that the agency review its legislation and proposed regulations to eliminate drafting errors and ambiguity; that the agency write its legislation and regulations to minimize litigation; and that the agency's legislation and regulations provide a clear legal standard for affected conduct rather than a general standard, and promote simplification and burden reduction. Because section 3 focuses on the quality of Federal legislation and regulations, the Department limited its review under this Executive Order to the quality of this Federal Register document and to changes to the Federal regulations. The review under this Executive Order did not extend to the language of the State regulatory program or to the program amendment that the State of Wyoming drafted.

This rule has potential Federalism implications as defined under Section 1(a) of Executive Order 13132. Executive Order 13132 directs agencies to “grant the States the maximum administrative discretion possible” with respect to Federal statutes and regulations administered by the States. Wyoming, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the State level. This rule approves an amendment to the Wyoming program submitted and drafted by the State and, thus, is consistent with the direction to provide maximum administrative discretion to States.

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria of Executive Order 13175 and have determined that, although no Indian lands, as defined under SMCRA, are implicated by this rule, this State program amendment may have substantial direct effects on 49 Federally-recognized Tribes because of the potential implications for the Tribe or Tribal members, Tribal treaty rights, reserved rights, trust resources, or ancestral lands. Therefore, on September 27, 2024, we sent invitation letters to consult to these 49 Tribes (Administrative Record No. WY-049-08).

In response to our invitation, we received one request for Tribal consultation, one request for an informational meeting, and two written comments. Despite the request for Tribal consultation, we did not receive a response to our follow-up communication to set up a date and time, so the Tribal consultation did not go forward. In response to the request for an informational meeting, we met with a representative of the Shoshone Paiute Tribe on October 28, 2024. During the meeting, we explained Wyoming's proposed amendment to the Tribe in further detail. At the end of the meeting, the Shoshone Paiute decided to not pursue Tribal consultation.

We received a written comment from the Northern Cheyenne Tribe on October 22, 2024 (Administrative Record No. WY-049-09). The Tribe recognized that this proposed amendment would allow for the disposal of wind turbines and blades without the need to seek out any new undisturbed land; however, the Tribe expressed concern with how Tribal governments are included in the determination of potential impacts to archaeological resources. The Northern Cheyenne Tribe stated that Wyoming does not include Tribes as part of the state SMCRA permit review process and that the best outcome would be to include Tribes in the reviews and approvals on State-owned lands with the applicable coal mine areas for disposition of wind turbine blades and towers.

We also received a written comment from the Comanche Nation on October 25, 2024 (Administrative Record No. WY-049-11). In their comment, the Comanche Nation's Historic Preservation Officer stated that no prehistoric or historic archaeological materials for the Tribe were identified within areas of mineable coal in Wyoming.

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking 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 a significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.

Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1291 (d) respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), State program amendments are not 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 include requests and requirements of an individual, partner, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ) is not required.

Although there is no Federal counterpart for Wyoming's proposed amendment, based on OSMRE's collaboration with State regulatory authorities and years of experience, OSMRE certifies that this final 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. ).

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 rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of $100 million per year. Although there is no Federal counterpart for Wyoming's proposed amendment, OSMRE's determination regarding unfunded mandates is based on OSMRE's collaboration with State regulatory authorities and years of experience.

For the reasons set out in the preamble, 30 CFR part 950 is amended as set forth below:

Congress established Glen Canyon National Recreation Area (the recreation area) in 1972 “to provide for the public outdoor recreation use and enjoyment of Lake Powell and lands adjacent thereto in the states of Arizona and Utah and to preserve the scenic, scientific, and historic features contributing to the public enjoyment of the area.” 16 U.S.C. 460dd.

The recreation area encompasses 1,254,117 acres in northern Arizona and southeastern Utah and constitutes a substantial part of the outstanding public lands of the Colorado Plateau. The recreation area offers a natural diversity of rugged water- and wind-carved canyons, buttes, mesas, and other outstanding physiographic features. The recreation area allows for a variety of recreational opportunities, including on- and off-road motor vehicle use and contains Lake Powell, the second-largest human-made lake in North America, which provides the opportunity to recreate in a natural environment and access remote backcountry areas. Evidence of 11,000 years of human occupation and use of resources in the recreation area provides a continuing story of the prehistoric, historic, and present-day affiliation of humans and their environment.

The National Park Service (NPS) manages the recreation area under the NPS Organic Act (54 U.S.C. 100101 et seq. ), which gives the NPS broad authority to regulate the use of the park areas under its jurisdiction. The NPS Organic Act authorizes the Secretary of the Interior, acting through the NPS, to “prescribe such regulations as the Secretary considers necessary or proper for the use and management of [National Park] System units.” 54 U.S.C. 100751(a). In the recreation area's enabling act, Congress directed the Secretary of the Interior to “administer, protect, and develop the recreation area in accordance with the [NPS Organic Act], and with any other statutory authority available to him for the conservation and management of natural resources.” 16 U.S.C. 460dd-3. These general authorities allow the NPS to regulate the use of motor vehicles within the recreation area, both on roads and off roads, and on designated routes and areas.

Executive Order 11644, Use of Off-Road Vehicles on the Public Lands, was issued in 1972 and amended by Executive Order 11989 in 1977. Executive Order 11644 requires Federal agencies to issue regulations designating specific routes and areas on public lands where the use of off-road vehicles (ORVs) may be allowed. The NPS implemented these Executive Orders, in part, by promulgating a regulation at 36 CFR 4.10 (Travel on park roads and designated routes). Under 36 CFR 4.10, the use of motor vehicles off park roads is not permitted unless routes and areas are designated for off-road motor vehicle use by special regulation. Under 36 CFR 4.10(b), such routes and areas may be designated only in national recreation areas, national seashores, national lakeshores and national preserves. This rule implements regulatory changes for certain areas where motor vehicles may be used off park roads in the recreation area in compliance with 36 CFR 4.10 and Executive Orders 11644 and 11989. The changes to motor vehicle use on roads within the recreation area are not subject to the requirements in 36 CFR 4.10(b) and the Executive Orders because they do not concern routes and areas. Paved and unpaved roads within the recreation area are referred to in this rule and defined in the regulations as “GMP roads” because they are identified in the recreation area's 1979 General Management Plan (GMP) as open to motor vehicle traffic. There are no roads within the recreation area other than GMP roads.

In 2021, the NPS promulgated special regulations that for the first time addressed the use of motor vehicles within the recreation area (86 FR 3804). These regulations are codified at 36 CFR 7.70(f) and address the use of conventional motor vehicles, off-highway vehicles (OHVs), and street-legal all-terrain vehicles (ATVs). The regulations establish rules for the use of motor vehicles on paved and unpaved GMP roads and off roads in designated routes and areas. The regulations also contain a permit requirement for off-road motor vehicle use, motor vehicle and operator requirements, and provide the superintendent with a specific discretionary authority to establish closures, conditions, and restrictions on ORV use after taking into consideration public health and safety, natural and cultural resource protection, lake levels, and other management activities and objectives.

The National Parks Conservation Association filed a Complaint challenging the special regulations on January 19, 2021, which it subsequently amended on April 16, 2021. The Southern Utah Wilderness Alliance filed a Complaint on March 15, 2023, which also challenged the special regulations. It amended its Complaint on August 7, 2023. The Court consolidated the two matters and stayed the cases for settlement discussions among the parties. The Parties executed a Settlement Agreement on March 26, 2024. The court subsequently entered an Order dismissing the cases on April 10, 2024. As part of the Settlement, the NPS agreed to propose revisions to the existing special regulations.

In January 2017, the NPS completed an Off-Road Vehicle Management Plan/Final Environmental Impact Statement (FEIS). On August 15, 2018, the Regional Director for the Intermountain Region signed a Record of Decision (ROD) identifying the preferred alternative in the FEIS (Alternative E: Mixed Use) as the selected alternative. In support of this rule, the NPS prepared a revised Record of Decision (Revised ROD). The FEIS and the Revised ROD supersede all previous ORV management plans for the recreation area. A detailed history of prior NPS management of on- and off-road vehicle use can be found in the FEIS, which can be viewed together with the Revised ROD at https://parkplanning.nps.gov/glca by clicking any of the links entitled “Off-road Vehicle Management Plan/Environmental Impact Statement” and then the link entitled “Document List.” The FEIS analyzes the issues and environmental impacts of five alternatives for the management of on- and off-road motor vehicle use in the recreation area. Major issues analyzed in the FEIS include social and economic issues, human health and safety, wildlife, natural soundscapes, wilderness, and visitor use and experience. Impacts associated with each of the alternatives are described in the FEIS. The Revised ROD addresses the purpose and need for this rule and evaluates potential impacts from its implementation. It also further explains the baseline for evaluating the impacts of motor vehicle use in the recreation area. Appended to the Revised ROD are a revised non-impairment determination and a site-specific evaluation of motor vehicle use on off-road routes and areas in the recreation area using the criteria in section 3(a) of E.O. 11644.

This rule makes the following changes to the existing special regulations in 36 CFR 7.70(f).

Two changes address OHV and street-legal ATV use in the Orange Cliffs Special Management Unit, defined in the existing regulations as the area identified as the Orange Cliffs Special Management Unit in the Canyonlands National Park and Orange Cliffs Unit of Glen Canyon National Recreation Area Backcountry Management Plan (NPS 1995). The rule prohibits the use of OHVs and street-legal ATVs on an 8-mile segment of the Poison Spring Loop located on Route 633 proceeding north to Route 730 in the Orange Cliffs Special Management Unit, identified in Table 2 to paragraph (f)(4)(i) in the existing special regulations. The rule also eliminates the superintendent's ability to potentially open the upper portion of the Flint Trail in the Orange Cliffs Special Management Unit to OHVs and street-legal ATVs, as stated in Table 2 to paragraph (f)(4)(i) and paragraph (f)(4)(ii) in the existing special regulations.

Three other changes address off-road vehicle use in areas that allow for access from GMP roads to the shoreline of the lake, referred to as shoreline access areas.

One change affects the following 10 shoreline access areas that are identified in table 1 to paragraph (f)(3)(ii) of the existing special regulations: Lone Rock Beach, Blue Notch, Bullfrog North and South, Crosby Canyon, Dirty Devil, Farley Canyon, Hite Boat Ramp, Red Canyon, Stanton Creek, White Canyon. The rule separates the existing shoreline access area at Bullfrog North and South into two shoreline access areas, one for Bullfrog North and another for Bullfrog South. The rule requires the superintendent to identify lake elevation levels at each of the 11 shoreline access areas where, if the lake elevation drops below the identified level and remains below the identified level for seven consecutive days, the shoreline access area will close to off-road motor vehicle use. Inversely, if the lake elevation increases above the identified level and remains above the identified level for seven consecutive days, the shoreline access area will open to off-road vehicle use.

The rule requires the superintendent to use hydrologic data from the United States Geological Survey and the Bureau of Reclamation to set the lake elevation levels, which will be subject to change based upon public health and safety, natural and cultural resource protection, and other management activities and objectives. The rule requires the elevation levels to be published on the recreation area's website and listed in the superintendent's compendium for the recreation area. The superintendent's compendium is a written compilation of all the designations, closures, permit requirements and other restrictions imposed under discretionary authority, required by 36 CFR 1.7(b). After the lake elevation drops below or rises above the identified level, and the seven-day waiting period has concluded, the rule requires the superintendent to identify the shoreline access area as open or closed to off-road vehicle use on the website for the recreation area and in the superintendent's compendium within 14 days after the expiration of the seven-day waiting period. The rule requires the NPS to install signs at each shoreline access area notifying the public that it is opened or closed to off-road motor vehicle use. When a shoreline access area is closed because lake elevations have dropped, the rule also requires the NPS to consider additional steps to prevent off-road vehicle use in the area, such as the installation of gates. The rule clarifies that motor vehicle use on a GMP road may continue within a closed shoreline access area at the discretion of the superintendent, and subject to the rules for operating a motor vehicle on such roads in the special regulations.

A second change related to shoreline access areas adds a statement in the regulations that off-road vehicle use in any of those areas, including the shoreline access areas identified in table 1 to paragraph (f)(3)(ii) of the existing special regulations that are not subject to closure based upon lake elevation, must be for the purpose of traveling from a GMP road to the shoreline, and back. This draws a clear distinction between the purpose of off-road vehicle use in shoreline access areas and the purpose of off-road vehicle use in Lone Rock Beach, Lone Rock Beach Play Area, and Ferry Swale, which are identified in table 1 to paragraph (f)(3)(ii), but not considered shoreline access areas. Lone Rock Beach is a developed area with a year-round campground and visitor activities associated with that use. Lone Rock Beach Play Area is a fenced location open to dispersed, high-intensity ORV use. Ferry Swale is a network of approximately 21 miles of off-road vehicle routes that does not provide access to the lake.

The existing regulations in paragraph (f)(6)(i) require the superintendent to provide public notice of closures, conditions or restrictions on ORV use through one or more of the methods listed in 36 CFR 1.7. A third change affecting shoreline access areas requires the superintendent, in every case, to publish notice of all such actions on the recreation area's website.

This final rule also prohibits OHV and street-legal ATV use on the following unpaved GMP roads in the Recreation & Resource Utilization Zone that is defined in the GMP:

• Unnamed road near Dry Mesa/Sheep's Canyon near Hite, sometimes referred to as Dry Mesa Road (approximately 4.31 miles).

• Road #2/95 Spur near Hite, also known as Dirty Devil Spur (approximately 1.14 miles).

• Cove Canyon Spur Road near Hite (approximately 0.65 miles).

• Flint Trail Spur Road near Hite, also known as Waterhole Flat Spur #1 Road & Dark Canyon Overlook Road (approximately 0.72 miles).

• Ticaboo Mesa Road near Bullfrog (approximately 1.45 miles).

• Muley Point Road (approximately 1.26 miles).

• Johns Canyon Road near Muley Point (approximately 7.49 miles).

This final rule also changes the quiet hours in the Lone Rock Beach Play Area from 10 p.m. to 6 a.m., in the existing regulations, to sunset to sunrise in the final rule. The superintendent retains the authority to lengthen the quiet hour time-period.

Finally, this final rule removes two sentences in paragraphs (f)(2)(i) and (f)(3)(ii) stating that certain regulations are effective beginning on May 17, 2021. This date has passed and therefore these statements are obsolete and unnecessary.

The NPS published a proposed rule in the Federal Register on September 16, 2024 (89 FR 75511). The NPS accepted public comments on the proposed rule for 60 days via the mail, hand delivery, and the Federal eRulemaking Portal at https://www.regulations.gov. Comments were accepted through November 15, 2024. The NPS received 2,351 comments on the proposed rule, including one letter-writing campaign with over 2,180 submissions. The NPS received comments from the State of Utah, county governments, advocacy groups, and private individuals. After considering public comments and after additional review, the NPS made one change to the proposed rule. The NPS has removed a proposed revision to paragraph (f)(2)(ii) in the existing special regulations that would have replaced the reference to a “special use permit” with a general reference to a “permit.” This proposed change is not part of the Settlement Agreement and therefore does not need to be included in this rule. Summaries of pertinent issues raised in the comments and NPS responses are provided below.

1. Comment: One commenter expressed concern about the impact of the rule on Kane County roads that run through the recreation area and requested that the NPS seek input and coordinate with county officials before making changes that would impact use of those roads.

NPS Response: The NPS values its partnerships with State, county and local governments and has endeavored to keep all partners informed and engaged in the planning and rulemaking processes that have occurred since the initial ORV planning stages in 2012. The NPS looks forward to continued discussions with its many partners and stakeholders during the implementation of this rule.

2. Comment: Several commenters asked the NPS to further explain the purpose and need for this rule. In particular, commenters asked the NPS to identify adverse impacts to resources ( e.g., soil, vegetation, wildlife, watershed) and visitors ( e.g., for recreation and access) caused by existing motor vehicle use that support the restrictions in this rule. Several commenters asked the NPS to compare impacts from OHVs and street-legal ATVs with impacts from conventional motor vehicles in a manner that supports the different treatment of those vehicle categories in this rule. Another commenter asked the NPS to share key research supporting the need for the rule.

NPS Response: Independent of the litigation, the NPS believes that the changes to the special regulations in this rule are appropriate for the reasons provided below. These changes are targeted, small in scale, and balance recreational interests from various user groups with resource protection. The large majority of the existing regulations will remain the same, including designated routes and areas for ORV use, permit requirements, and motor vehicle operator requirements ( e.g., speed limits and equipment requirements).

Eliminating OHV and street-legal ATV use in the Orange Cliffs Special Management Unit will better implement portions of the 1995 Backcountry Management Plan. The NPS developed this inter-park management plan to increase consistency and protection for visitors to both the Maze District of Canyonlands National Park (where OHVs and street-legal ATVs are prohibited) and the Orange Cliffs Special Management Unit. This change also will better implement the direction in the GMP that the NPS manage the Orange Cliffs Special Management Unit to maintain a relatively primitive, undeveloped atmosphere.

The changes related to shoreline access areas largely implement current management practices. Shoreline access area boundaries are defined by topographical features ( e.g., water lines and sandstone cliffs) that prevent motor vehicles from leaving designated areas. Low water levels expose travel corridors that would otherwise be blocked by topographical features, allowing users to leave designated shoreline access areas with resulting damage to resources ( e.g., soils, cultural and paleontological resources, and soundscapes). The FEIS identifies closures as an ORV management strategy to address decreasing lake elevations. The NPS already uses lake elevations as a management guide for motor vehicle use in shoreline access areas, and closes shoreline access areas using the discretionary authority of the superintendent in the existing regulations. This rule creates an explicit process for implementing closures due to low lake elevations, which will better inform visitors of potential closures and protect resources. This management tool will allow the NPS to respond to dramatic lake elevation changes that occur on Lake Powell (up to 75 feet annually) and facilitate active management of shoreline access areas.

Shoreline access areas are identified in the GMP and FEIS as a mechanism to facilitate access to the lake for recreation. Shoreline access areas were never contemplated or designed for dispersed driving. This change will help fulfill the original purpose of shoreline access areas and communicate that purpose to the public.

Eliminating OHV and street-legal ATV use on the subset of unpaved roads outside of the Orange Cliffs Special Management Unit will more closely align the regulations with zoning prescriptions in the GMP, which limit impacts to soundscapes in Natural Zones within the recreation area. The unpaved roads that would be affected by this rule are located close enough to Natural Zones such that the use of OHVs and street-legal ATVs on those roads would create adverse impacts to the soundscapes in those zones.

Establishing longer quiet hours in the Lone Rock Beach Play Area may reduce conflict between user groups, improve visitor safety, and better protect wildlife.

For more information about the purpose and need for the rule and associated environmental impacts, the public can view the FEIS and Revised ROD, which can be viewed on the NPS planning site at https://parkplanning.nps.gov/glca by clicking any of the links entitled “Off-road Vehicle Management Plan/Environmental Impact Statement” and then the link entitled “Document List.” The NPS evaluates impacts to resources in the recreation area from all categories of motor vehicle use in both documents. The FEIS contains an executive summary that presents an abbreviated version of the issues, research and analysis that informed the decision-making process, as well as provides a comparison between the alternatives considered.

3. Comment: Several commenters stated that the NPS has no authority to restrict travel on roads to which the State of Utah or county governments have a claim under Revised Statute 2477 (R.S. 2477) and asked the NPS recognize claimed R.S. 2477 rights. One commenter asserted that the NPS should consult with the State of Utah before asserting jurisdiction over such roads. Another commenter asked the NPS to defer any restrictions or closures on roads subject to R.S. 2477 claims until the courts resolve the merits of such claims. Roads identified in such comments that will be affected by this rule include the Flint Trail, Poison Spring Loop, and Cove Canyon Spur Road.

NPS Response: The NPS has broad authority to regulate motor vehicle use within the recreation area. The changes in this rule do not close any roads within the recreation area; they prohibit certain categories of motor vehicles on a small subset of roads. Claims by the State of Utah and county governments under R.S. 2477 within the recreation area have not been adjudicated. The NPS will evaluate the legal effects of any future court decisions regarding R.S. 2477 claims at the appropriate time. Under the Quiet Title Act, “[t]he United States shall not be disturbed in possession or control of any real property involved in any action . . . pending a final judgment or decree, the conclusion of any appeal therefrom, and [for] sixty days [thereafter]. . . .” 28 U.S.C. 2409a(b).

4. Comment: Several commenters stated that the restrictions on motor vehicle use in this rule are contrary to Congressional intent that the NPS manage the recreation area for the purpose of ensuring public access to outdoor recreation and enjoyment. Other commenters stated that there is no basis in the recreation area's enabling act to manage categories of motor vehicles differently.

NPS Response: Congress established the recreation area in 1972 to “provide for public outdoor recreation use and enjoyment of Lake Powell and lands adjacent thereto in the states of Arizona and Utah and to preserve the scenic, scientific, and historic features contributing to the public enjoyment of the area.” 16 U.S.C. 460dd(a) The enabling act also provides that “[t]he Secretary shall administer, protect, and develop the recreation area in accordance” with the NPS Organic Act “and with any other statutory authority available . . . for the conservation and management of natural resources.” Id. at § 460dd-3. These general authorities, among others, instruct the NPS to provide public recreation opportunities while regulating and administering the recreation area in a manner that complies with the NPS Organic Act and conserves natural resources. Thus, the NPS has broad discretion to manage categories of motor vehicles differently. The FEIS and Revised ROD explain why the potential impacts to resources and visitors are different between conventional motor vehicles, on the one hand, and OHVs and street-legal ATVs, on the other hand. OHVs and street-legal ATVs produce more noise than conventional motor vehicles, creating greater impacts on soundscapes. In addition, OHVs and street-legal ATVs generally are more capable of traveling off unpaved roads and directly over undisturbed natural terrain compared to conventional motor vehicles. This creates the potential for greater impacts to natural resources in those areas.

5. Comment: One commenter argued that the rule bypasses the authority held by Congress to designate wilderness areas by limiting motorized access in the Orange Cliffs Management Unit.

NPS Response: Prohibiting OHVs and street-legal ATVs cannot be considered a de facto designation of the Orange Cliffs Management Unit as wilderness. The regulations will continue to allow conventional motor vehicles on unpaved GMP roads within the Orange Cliffs Management Unit. Motor vehicle use is prohibited in designated wilderness and this rule does not change that. Neither the rule nor the existing regulations address any of the other prohibited uses in the Wilderness Act, such as motorized equipment, commercial activities, landing of aircraft, mechanical transport, structures, or installations.

6. Comment: One commenter asserted that E.O. 11644 precludes the NPS from considering the impacts of motor vehicles, in particular OHVs and street-legal ATVs, on the soundscape of the recreation area because that term is not mentioned in the E.O., unlike other resources such as soil, vegetation, and wildlife. This commenter also suggested that the NPS decrease the maximum decibel level limit in the existing regulations as a more effective way to protect soundscapes than placing new restrictions on OHVs and street-legal ATVs. The commenter stated that the rule will be ineffective in protecting soundscapes because conventional motor vehicles can produce noise levels equal to or exceeding the levels produced by the other OHVs and street-legal ATVs.

NPS Response: Soundscapes are a resource the NPS manages, with a goal of preserving, to the greatest extent possible, natural soundscapes within System units. NPS Management Policies 2006, Section 4.9. The NPS has committed to restoring the natural soundscape condition wherever possible when soundscapes have been degraded by unnatural sounds (noise) and will protect natural soundscapes from unacceptable impacts. While true that Executive Order 11644 does not specifically identify “soundscape” as a resource, it does require Federal agencies to consider harassment of wildlife, disruption of wildlife habitat, conflicts with other recreational users, and the compatibility of those uses. Further, it requires agencies to determine that designated locations for ORV use will not adversely affect their natural, aesthetic, or scenic values. The NPS considers soundscapes as a natural value of the recreation area. Therefore, the NPS considers noise as part of that analysis. Reducing the maximum 96 decibel of sound limit in the existing regulations would functionally preclude the use of many OHVs and street-legal ATVs in the recreation area. It also would be too broad of a prescription because in some locations noise output up to that level may be appropriate. As explained in the FEIS, OHVs and street legal ATVs generally have greater noise impacts than conventional motor vehicles.

7. Comment: Several commenters stated that NPS regulations for managing motor vehicle use in the recreation area should avoid conflict with State of Utah and county laws and policies. One commenter cited conflict with the San Juan County Travel Plan which recognizes Johns Canyon Road, Muley Point Road, and Dry Mesa Road as open to all classes of vehicles. Several commenters cited conflict with State of Utah motor vehicle law which allows off-highway vehicles on public highways designated as open by the controlling Federal, State, country, or municipal agency. State of Utah Code 41-22-10.1.

NPS Response: The NPS recognizes the value of consistent management among Federal and State jurisdictions. NPS regulations adopt non-conflicting State law for traffic and the use of motor vehicles in all National Park System units, including the recreation area. See 36 CFR 4.2(a). In some situations, however, it may be necessary for NPS regulations to conflict with State and local laws or policies in order to comply with Federal law and policy. As the controlling agency for the management of lands within the recreation area, the NPS has a legal responsibility to manage the recreation area in accordance with the enabling act, which requires the NPS to administer, protect, and develop the recreation area in accordance with the NPS Organic Act for the conservation and management of natural resources. The NPS believes that the restrictions in this rule on the use of OHVs and street-legal ATVs on certain unpaved roads within the recreation area are appropriate. This is further explained in the Revised ROD. The NPS made substantial effort to ensure that the changes in this rule are minor alternations to the existing regulations that implement the preferred alternative in the FEIS.

8. Comment: One commenter stated that prohibiting OHVs and street-legal ATVs on Johns Canyon Road limits the ability of the State of Utah Trust Lands Administration to derive the full economic benefit of State trust lands from recreational and other revenue generating activities.

NPS Response: The NPS recognizes the importance of allowing the residents of the State of Utah to derive economic benefit from State trust lands and does not believe that this rule will eliminate the economic value of State trust lands accessible by Johns Canyon Road. This road will continue to be open to conventional motor vehicles as a means of accessing adjacent trust lands. The NPS is willing to discuss access to and activities on State trust lands to the extent a written authorization from the NPS, or cooperation between the NPS and the Trust Lands Administration, is necessary or appropriate.

9. Comment: One commenter suggested that the NPS change quiet hours in the Lone Rock Beach Play Area to 30 minutes before sunset and after sunrise to further enhance the enjoyment of watching those events.

NPS Response: The decision to set quiet hours to sunrise and sunset generally lengthens quiet hours compared to the existing regulations, which will allow for more tranquil experiences during those events. It further will allow quiet hours to shift with the seasons without the need for administrative actions. Adding 30-minute buffers on either side of sunset and sunrise will complicate the public's understanding of when quiet hours begin and end and may increase the potential for misunderstanding and visitor conflict.

10. Comment: Several commenters objected to the NPS closing shoreline access areas when lake elevations drop. One commenter argued that this would unfairly limit access to Lake Powell when other visitor activities on the water, such as boating and operating generators to power houseboats, have greater impacts to the natural environment than ORV use. Other commenters stated that certain shoreline access areas, such as Farley Canyon, Blue Notch Canyon, Red Canyon, and White Canyon should remain open because they provide wild camping experiences that are not available at more accessible shoreline access areas. Another commenter specifically asked the NPS to keep Blue Notch Canyon open at any lake elevation because it is the only northern vehicle-access point for small boat launching and shore camping.

NPS Response: The NPS established the boundaries of shoreline access areas utilizing topographical and bathymetric data to identify confining barriers for motorized vehicle traffic. The NPS designed shoreline access to accommodate access at higher lake levels, accounting for only small fluctuations in surface elevations. When lake levels recede to certain elevations, alternative travel corridors can become exposed, allowing motorized vehicle users to leave designated areas and potentially cause resource impacts. Persistent drought over the last two-and-a-half decades, however, has resulted in a steady decline of the level of the lake, which has receded well below the original boundaries of many of the shoreline access areas at the water's edge. In some situations, the water level has migrated miles away from the defined use areas. Some shoreline access areas, therefore, have been temporarily closed to discourage creation of networks of unauthorized secondary routes as users chase receding water levels. These closures protect vegetation and wildlife that are recolonizing exposed areas, protect cultural resources ( e.g., archeological sites) that may be exposed by receding water levels, protect natural and cultural resources in adjacent areas that have become accessible, and promote visitor safety by keeping visitors away from locations that have not been determined safe for ORV use. Should lake levels rebound, the shoreline access areas subject to temporary closures in this rule would reopen. Stanton Creek remains open and provides the opportunity for wild camping experiences.

11. Comment: One commenter suggested that the NPS limit the number of ORVs allowed in shoreline access areas to prevent accelerated erosion, which could lead to runoff and increased water pollution, significantly affecting the habitats and wildlife in the recreation area. Several commenters expressed concern that OHV users may disregard the rules and urged the NPS to regularly monitor wildlife and habitat quality in areas affected by this rule to evaluate its effectiveness.

NPS Response: This rule does not limit the number of ORVs that can enter shoreline access areas, which was not contemplated by any of the alternatives evaluated in the FEIS. The NPS monitors the degradation of resources, including soil erosion, wildlife, and wildlife habitat, in shoreline access areas and other locations within the recreation area. If the NPS observes substantial negative impacts to the resources at any shoreline access area, it may take mitigation measures that could include a temporary closure of the affected area for recovery and rehabilitation.

12. Comment: One commenter stated that the NPS should reopen the Crosby Canyon shoreline access area because the closure is preventing the use of roads below the high-water line.

NPS Response: When the Crosby Canyon shoreline access area is open, limited driving beyond direct travel from Crosby Canyon Road is allowed to access the adjacent shoreline when water is present there. Any other “roads” or routes within the shoreline access area are unauthorized and user-created. This shoreline access area is currently closed due to low water levels for the reasons explained above.

13. Comment: One commenter stated that temporarily closing shoreline access areas results in congestion and overcrowding in the areas that remain open, exacerbating impacts to the environment in those areas. Keeping shoreline access areas open would disperse use across multiple managed access points and discourage users from creating non-designated routes to access the shoreline.

NPS Response: The NPS has not observed high levels of congestion in the shoreline access areas that remain open. Temporary closures of shoreline access areas when lake elevations drop are necessary to protect resources and visitors for the reasons explained above.

14. Comment: One commenter stated that limiting ORV use to direct travel from a road to the shoreline and back significantly limits the utility and value of shoreline access because they will no longer provide meaningful and practical access to the water's edge. Instead, and to meet public demand, this commenter recommended the designation of routes that lead to the shoreline.

NPS Response: The purpose of shoreline access areas is to provide motorized vehicle access to the edges of Lake Powell; they are not intended to provide general overland driving opportunities that are available elsewhere, such as the Lone Rock Beach Play Area. Dramatically fluctuating water levels at Lake Powell can significantly alter the area of beach exposed as dry lakebed. This is especially true in locations with a relatively flat shoreline where the water's edge can rise and recede great distances over the course of a normal water year. Because of these fluctuations, and the visual impacts associated with signage and barriers on open, exposed landscapes, designating travel routes within a shoreline access area is challenging and often impracticable. NPS will continue placing signage and other interpretive tools at shoreline access areas where appropriate.

15. Comment: Several commenters stated that OHVs and street-legal ATVs are purpose-built and optimized for travel on rugged backcountry roads (including the Flint Trail and Poison Spring Loop) and for that reason are safer than conventional motor vehicles on those roads. Another commenter stated that OHVs and street-legal ATVs are designed for backcountry conditions and are more capable of navigating steep and uneven terrain than conventional high-clearance vehicles. These commenters stated that prohibiting their use on unpaved roads may increase the likelihood of accidents and stranding.

NPS Response: Conventional motor vehicles can be sufficiently capable of travel on unpaved roads within the recreation area, especially when they are properly equipped and operated. There is insufficient data available to conclude that conventional motor vehicles are less safe than OHVs and street-legal ATVs at low speeds. The off-road capabilities of OHVs and street-legal ATVs create the opportunity to take them off-road for driving directly over undisturbed natural terrain, creating the potential for significant impacts to natural resources in those locations.

16. Comment: One commenter argued that prohibiting OHVs and street-legal ATVs on certain roads, such as the Cove Canyon Spur Road near Hite, Ticaboo Mesa Road, and the 8-mile segment of the Poison Spring Loop, will sever connectivity between NPS-managed lands and adjacent lands administered by the Bureau of Land Management (BLM). In particular, this commenter stated that closure of the Cove Canyon Spur Road will make BLM-managed lands within the Henry Mountain Travel Management Area inaccessible to OHVs and street-legal ATVs. This commenter argued that these closures undermine BLM travel planning and restrict lawful access to adjacent BLM-managed areas, imposing burdens on land use outside of NPS jurisdiction. Several commenters asked the NPS to explain whether it has coordinated with BLM about road closures that will impact BLM lands.

NPS Response: This rule only applies to NPS-administered lands. The rule will restrict the categories of vehicles that may travel on some unpaved roads within the recreation area that connect to adjacent BLM lands. This could affect how certain visitors travel between the recreation area and those adjacent lands, but will not interfere with any administrative action taken by BLM on lands administered by that agency. The NPS regularly coordinates with BLM on respective travel management plans (most recently in September 2024) and attempts to stay aligned when possible, recognizing that different laws and policies guide visitor use management for each agency. Cove Canyon Spur Road connects with a county-maintained road on BLM lands that is open to conventional motor vehicles, OHVs, and street-legal ATVs. This road is less than one mile in length and does not connect with any other roads outside of the recreation area. Visitors will still be able to use OHVs and street-legal ATVs on this road segment provided they are hauled there on Cove Canyon Spur Road using conventional motor vehicles. Notwithstanding any effect this rule may have on motorized use of that road, the NPS believes that the restrictions in this rule on Cove Canyon Spur Road are necessary under the distinct legal and policy framework governing NPS management of the recreation area. Ticaboo Mesa Road does not connect with an open route on BLM lands. Travelers can access the BLM portions of the Poison Spring Loop using OHVs and street-legal ATVs without having to travel through the recreation area.

17. Comment: Commenters raised concerns that the rule creates an environmental justice issue by restricting access to public lands for economically disadvantaged visitors who depend on OHVs and street-legal ATVs.

NPS Response: As discussed in the FEIS, the NPS does not believe that this rule disproportionally affects economically disadvantaged individuals or communities. Over 250 miles of road in the recreation areas will continue to be open to OHVs and street-legal ATVs.

18. Comment: Several commenters noted that ORV routes are the only way for individuals with limited mobility to access certain areas. They expressed concern that prohibiting OHVs and street-legal ATVs on certain roads would restrict access for people with disabilities and limit their recreational opportunities.

NPS Response: The NPS strives to create opportunities for recreation and access to National Park System units for all types of visitors, including those with limited mobility and disabilities. Conventional motor vehicles will continue to be allowed on all paved and unpaved roads within the recreation area. This will allow persons with limited mobility and disabilities to use motor vehicles to access and enjoy the recreation area. Consistent with the Rehabilitation Act of 1973 and other applicable laws, NPS makes all practicable efforts to make NPS facilities and programs accessible and usable by all people, including those with disabilities. NPS addressed these concerns in the FEIS, see p. A-19.

19. Comment: Many commenters expressed concern that this rule will eliminate opportunities for access and recreation throughout the recreation area. One commenter stated that certain unpaved roads themselves hold historical and cultural significance tracing back to paths used by early settlers and indigenous communities and that closing these roads would diminish public access to lands that communities have relied upon for generations, permanently disconnecting them from these important cultural landscapes. Another commenter asserted that prohibiting OHVs and street-legal ATVs on certain unpaved roads, such as Johns Canyon, Muley Point, and Dry Mesa, will reduce opportunities for recreation and access to some of the most scenic areas of San Juan County.

NPS Response: This rule will not close any unpaved roads within the recreation area to motor vehicle traffic. Conventional motor vehicles will continue to be allowed on all paved and unpaved roads within the recreation area, providing a viable means of recreation and motorized access to points of interest, scenic landscapes, dispersed camping, remote areas, and areas of historic and cultural significance. The use of OHVs and street-legal ATVs will continue to be allowed on the vast majority of unpaved roads within the recreation area. The roads that will be closed to these vehicle categories account for 25 of 295 miles (or approximately eight percent) of all the unpaved roads open to motor vehicle use in the recreation area. Substantial opportunities for motorized recreation will remain available to those and other user groups. Motorized recreation and access (particularly to the shoreline of the lake) were recognized by Congress when it established the recreation area. This rule preserves motorized use in the recreation area in balance with limited measures that protect resources and other visitor experiences. In general, conditions on Johns Canyon Road, Muley Point Road, and Dry Mesa Road do not require the use of an OHV or street-legal ATV in order to access scenic areas that they access and traverse. These roads normally accommodate a variety of conventional motor vehicle types which will continue to provide recreational and scenic opportunities within San Juan County. As discussed in the FEIS, other roads with strong cultural and historical significance, such as Hole in the Rock Road, will remain open to conventional vehicles, OHVs, and street-legal ATVs in order to accommodate access to these popular driving destinations for local residents and tourists.

20. Comment: Several commenters stated that prohibiting OHVs and street-legal ATVs on the 8-mile segment of the Poison Spring Loop creates an unreasonable barrier in the middle of a critical road. Several commenters expressed concern that closing the 8-mile segment of the Poison Spring Loop will create a dangerous situation for anyone using an OHV or street-legal ATV to complete an overland trip from the northern Poison Spring Loop down to Hite. These commenters stated that the only alternative route is to travel for 40 miles on a State highway (Utah State Route 95) from Hanksville to Hite that is very dangerous for slower vehicles.

NPS Response: Before 2021, the 8-mile segment of the Poison Spring Loop in the recreation area had never been open to OHV and street-legal ATV use. This segment is not a historic or customary travel corridor or traffic route for these categories of vehicles and will remain open for travel by conventional motor vehicles. The NPS acknowledges that several commenters perceive travel on Utah State Route 95 as more dangerous using OHVs or street-legal ATVs compared to conventional motor vehicles. Rules about the types of vehicles that are allowed on that highway are established by the State of Utah. This rule will result in the same trip planning options that existed before 2021 and does not force anyone to use OHVs or street-legal ATVs on the highway if they feel that it would be unsafe.

21. Comment: Several commenters stated that restricting OHV and street-legal ATV use will reduce tourism opportunities for motorized recreation and hurt the local economies of nearby communities, including Hanksville, Ticaboo, Blanding, Escalante, Torrey, and Boulder. One commenter highlighted the rapid growth of the OHV market in Utah and urged the NPS to keep roads open to support this industry. This commenter stated that Hite is an ideal basecamp for commercial OHV and street-legal ATV tours, and that the NPS may have difficulty attracting concessioners if revenue opportunities are restricted.

NPS Response: The NPS values its relationship with nearby communities and appreciates the importance of tourism for local economies. There are currently two businesses that have a commercial use authorization (CUA) to provide guided tours using OHVs and street-legal ATVs in the recreation area. These businesses are not authorized to operate in the Orange Cliffs Special Management Unit and do not currently offer tours on the unpaved roads that will be affected by this rule. No other businesses offer commercial visitor services that will be affected by this rule. As stated above, use of OHVs and street-legal ATVs will continue to be allowed on the vast majority (92%) of unpaved roads currently open to motor vehicle use within the recreation area. There will continue to be ample opportunities for motorized recreation within the recreation area using various categories of vehicles. There will continue to be opportunities for small businesses to apply for CUAs to provide commercial visitor services, including guided ORV tours, within the recreation area where appropriate and in accordance with applicable law and policy.

22. Comment: Commenters voiced concerns about compliance with ORV regulations and proposed several methods for the NPS to improve it. Recommended methods included (1) developing an in-person and online public education program to explain the environmental rationale for the new rules and state which shoreline access areas are open or closed to motorized use; (2) improving signage that details allowed activities on ORV routes, areas, and roads; (3) guidance on what is allowed in both open and closed shoreline access areas; and (4) utilizing multilingual information on signs, websites, and social media to communicate closures and regulatory requirements.

NPS Response: The NPS currently engages in a variety of methods to communicate ORV information to the public. The recreation area website hosts information on closures and features a short video to educate ORV users on the rules and responsibilities for all vehicle operators. The NPS has developed geo-enabled electronic files that visitors can view on the website or offline in third party apps for use in the field on mobile devices. Implementation of the FEIS includes posting signs that designate routes and aid users in recognition of authorized vehicle types for each ORV-use location. The NPS publicizes closures and openings of roads, routes, and shoreline access areas through press releases, notifications to partners, and website and social media updates.

Executive Order 11644, as amended by Executive Order 11989, was adopted to address impacts on public lands from ORV use. The Executive Order applies to ORV use on Federal public lands that is not authorized under a valid lease, permit, contract, or license. Section 3(a)(4) of Executive Order 11644 provides that ORV “[a]reas and trails shall be located in areas of the National Park System, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values.” Since the E.O. clearly was not intended to prohibit all ORV use everywhere in these units, the term “adversely affect” does not have the same meaning as the somewhat similar terms “adverse impact” and “adverse effect” used in the National Environmental Policy Act of 1969 (NEPA). In analyses under NEPA, a procedural statute that provides for the study of environmental impacts, the term “adverse effect” includes minor or negligible effects.

Section 3(a)(4) of the Executive Order, by contrast, concerns substantive management decisions and must be read in the context of the authorities applicable to such decisions. Glen Canyon National Recreation Area is an area of the National Park System. Therefore, NPS interprets the Executive Order term “adversely affect” consistent with its NPS Management Policies 2006. Those policies require that the NPS only allow “appropriate use” of parks and avoid “unacceptable impacts.”

This rule is consistent with the requirements of Executive Order 11644 in the context of these authorities and policies. Supporting analysis for this determination can be found in the FEIS and Revised ROD, which includes a revised non-impairment determination and a site-specific evaluation of motor vehicle use on off-road routes and areas in the recreation area using the minimization criteria in section 3(a) of E.O. 11644.

Section 8(a) of the Executive Order requires agency heads to monitor the effects of ORV use on lands under their jurisdictions. On the basis of information gathered, agency heads may from time to time amend or rescind designations of areas or other actions as necessary to further the policy of the Executive Order. The preferred alternative in the FEIS that was selected in the related 2017 Record of Decision includes monitoring and resource protection procedures and periodic review to provide for the ongoing evaluation of impacts of motor vehicle use on protected resources. This ongoing adaptive management and monitoring protocol will continue under this final rule. The superintendent retains authority to take appropriate action as needed to protect the resources of the recreation area.

Executive Order 12866, as amended by Executive Order 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that the final rule is not significant.

Executive Order 14094 amends Executive Order 12866 and reaffirms the principles of Executive Order 12866 and Executive Order 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and be consistent with Executive Order 12866, Executive Order 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law.

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. The NPS has developed this rule in a manner consistent with these requirements.

This rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). No small entities will be directly regulated by the rule, which only modifies regulations affecting visitor use of ORVs in certain areas of the park. The roads that will be closed to OHV and street-legal ATV use only account for 25 of 295 miles (or approximately eight percent) of GMP roads open to motor vehicle use in the recreation area. Currently, there are no authorized guiding companies that use OHVs and street-legal ATVs on the roads that will be closed to those vehicles.

This rulemaking is not a major rule under 5 U.S.C. 804(2). This rulemaking:

(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 rulemaking does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rulemaking does not have a significant or unique effect on State, local or Tribal governments or the private sector. It addresses public use of national park lands and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This rulemaking does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, the rulemaking does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rulemaking only affects use of federally administered lands and waters. It has no direct effects on other areas. A federalism summary impact statement is not required.

This rulemaking complies with the requirements of Executive Order 12988. This rulemaking:

(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.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the criteria in Executive Order 13175 and under the Department's consultation policy and have determined that Tribal consultation on the rule is not required because the rule will have no substantial direct effect on federally recognized Indian Tribes. In support of the Department of Interior and NPS commitment for government-to-government consultation with the 19 Native American Tribes and bands associated with the recreation area, and as a reflection of the shared boundary of the recreation area and the Navajo Nation, the NPS has engaged in a continuing process of consultation with these Tribes and bands. This consultation has taken the form of bimonthly newsletters, in-person meetings with chapter houses, informal email updates, and formal update letters.

This rule contains no new information requirements that will affect the currently approved information collection. (NPS Special Park Use Permits NPS Form 10-933—OMB Control Number 1024-0026). By using NPS Form 10-933 this action will cause a net increase of 3,000 respondents and 750 burden hours. In accordance with 5 CFR 1320.10, the agency may continue to conduct or sponsor this collection of information while the submission is pending at OMB. Based on the anticipated net increase, we expect that the overall respondent burden for this collection will be 83,542 responses totaling 23,640 annual burden hours. The NPS did not receive any public comments related to this information collection during the 60-day public comment period.

Title of Collection: Special Park Use Applications, portions of 36 CFR 1-7, 13, 20, and 34.

OMB Control Number: 1024-0026.

Form Number: NPS Forms 10-930, 10-930c, 10-930s, 10-930q, 10-931, 10-932, 10-933, 10-934.

Type of Review: Revision of a currently approved collection.

Respondents/Affected Public: Individuals/households (licensed anglers drawn from three representative U.S. States).

Total Estimated Number of Annual Respondents: 83,542.

Total Estimated Number of Annual Responses: 83,542.

Estimated Completion Time per Response: Varies from 15 minutes to 30 minutes (depending on the activity).

Total Estimated Number of Annual Burden Hours: 23,640.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion.

Total Estimated Annual Nonhour Burden Cost: $6,265,650 for application fees.

An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

This rule constitutes a major Federal action significantly affecting the quality of the human environment. We have prepared the FEIS and Revised ROD in compliance with NEPA. These documents are available online at https://parkplanning.nps.gov/glca by clicking any of the links entitled “Off-road Vehicle Management Plan/Environmental Impact Statement” and then the link entitled “Document List.”

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

In consideration of the foregoing, the National Park Service amends 36 CFR part 7 as follows:

In the FR Doc. 2024-25521 of November 27, 2024 (89 FR 93912), there were a number of technical and typographical errors that are identified and corrected in this correcting document. The corrections in this correcting document are effective as if they had been included in the document that appeared in the November 27, 2024 Federal Register . Accordingly, the corrections are effective January 1, 2025.

In the FOR FURTHER INFORMATION CONTACT section, the email address for Kelly Wojciechowski is incorrect.

On pages 94054 and 94055, we are correcting typographical errors. Specifically, we are correcting CPT code “0899T” to “0889T”.

On pages 94111 and 94114, we referred to an incorrect APC assignment for CPT code 15013. We inadvertently failed to account for the impact on the amount of payment for the skin cell suspension autograft procedure described by CPT code 15013 ( Preparation of skin cell suspension autograft, requiring enzymatic processing, manual mechanical disaggregation of skin cells, and filtration; first 25 sq cm or less of harvested skin ) of the assignment of this code to status indicator “T” (Procedure or Service, Multiple Procedure Reduction Applies; Paid under OPPS, separate APC payment) when we assigned CPT code 15013 to APC 1567 New Technology—Level 30 ($6,001-$6,500), which has a payment rate of $6,250.50 and status indicator “T”.

In the final rule with comment period, we stated that when the full service (skin cell suspension autograft described by CPT codes 15011 through 15018) is performed, meaning that the harvesting (described by CPT code 15011), preparation (described by CPT code 15013), and application (described by CPT codes 15015 or 15017) steps are performed, the total cost for the service for CY 2025 would be approximately $10,000. However, because of the effect of the multiple procedure reduction, the total payment for the skin cell suspension autograft furnished using the RECELL System would have been approximately $8,000, contrary to the intended target of $10,000 as stated in the CY 2025 OPPS/ASC final rule with comment period. To correct this error, we are assigning CPT code 15013 to APC 1532 New Technology—Level 32 ($7,001-$7,500), which has a payment rate of $7,250.50 and status indicator “S” (Procedure or Service, Not Discounted When Multiple, Paid under OPPS; separate APC payment.).

On page 94120, we stated “We note that we will replace HCPCS code C9734 with CPT code 5X008 (55882) effective January 1, 2025, as well as assign the underlying claims associated with HCPCS code C9734 to CPT code 5X008 (55882).” While we intended to crosswalk the claims data for HCPCS code C9734 to CPT code 5X008 (55882) to determine the APC assignment for CPT code 5X008 (55882) for CY 2025, we did not intend to retire HCPCS code C9734 because, based on its descriptor, C9734 can be used for services other than those described by CPT code 5X008 (55882). We are correcting this reference to indicate that we are using C9734 claims data to set the payment rate for CPT code 5X008 (55882) and removing the reference to replacing HCPCS code C9734. HCPCS code C9734 will remain assigned to APC 5115 (Level 5 Musculoskeletal Procedures).”

On pages 94368 and 94380, we are correcting URL links in footnotes 270 and 316 (respectively) for accuracy.

On page 94407, we are making a technical edit and removing language for accuracy.

On pages 94411 and 94412, we are correcting URL links in footnotes 446 and 461 (respectively) for accuracy.

On pages 94416 and 94417, we are correcting section references for accuracy.

On page 94417, we are correcting final rule references for accuracy.

On page 94522, we are correcting the number of web-based measures that are being finalized in the rule for the Hospital OQR program.

On pages 94561 through 94563, we are correcting section references for accuracy.

On pages 94442, 94446, 94448, 94452, and 94561, we made typographical errors. Specifically, on page 94442 we inadvertently included a dollar symbol ($), on page 94446 we inadvertently repeated the word “that,” on page 94448 we inadvertently repeated the phrase “rely upon,” on page 94452 we inadvertently omitted the word “system” from the phrase “mistrusted the health care system at higher rates,” and on page 94561 we inadvertently included the phrase “Four Walls:” at the beginning of the title for Table 207.

On page 94455, we incorrectly stated in footnote 586 that as of November 27, 2024, the Health Resources and Services Administration (HRSA) had not finalized their proposed changes to the Federal Office of Rural Health Policy's (FORHP) definition of rural. However, HRSA finalized changes to FORHP's definition of rural in a final notice published in the Federal Register on November 21, 2024 (89 FR 92131), which post-dated CMS's development of the final rule. We are making corrections to state that, as of the development of the OPPS final rule, HRSA had not finalized changes to FORHP's definition of rural.

On pages 94481, 94483, 94542, 94569, 94571, 94572, and 94573 we are replacing the word “biannual” and/or “biannually” with the word “biennial” and/or “biennially”, to clarify that staff training is required every other year, not twice a year.

On page 94586, in the regulations text for § 406.27(d)(1), we are adding in a missing word.

On page 94591, we made technical errors in the regulations text amendatory instructions for § 457.342, by excluding the numbering of paragraph (a) and the reservation of paragraph (b).

On pages 94592 and 94594 we are replacing the word “biannual” with the word “biennial”, to clarify that staff training is required every other year, not twice a year.

To view any corrections or updates to the final CY 2025 OPPS status indicators, APC assignments, relative weights, copayment rates, device-intensive status, and short descriptors in the OPPS addenda, we refer readers to the Addenda and supporting files that are posted on the CMS website at https://www.cms.gov/medicare/payment/prospective-payment-systems/hospital-outpatient/regulations-notices. Select “CMS-1809-F2” from the list of regulations. All corrected Addenda for this correcting document are contained in the zipped folder titled “2025 F2 OPPS Addenda” at the bottom of the CMS web page for CMS-1809-F2.

We are making a number of updates to Addendum B (OPPS Payment by HCPCS Code for CY 2025) to correct typographical errors. We are also correcting the following technical errors:

We incorrectly deleted HCPCS code C9734 (U/s trtmt, not leiomyomata) from Addendum B by inadvertently assigning it to status indicator “D”. We are correcting this error by replacing status indicator “D” with “J1” for HCPCS code C9734 and assigning it to APC 5115 (Level 5 Musculoskeletal Procedures) in Column E, as well as adding corresponding data to Columns F-K to reflect the updated APC 5115 assignment.

In addition, due to an inadvertent miscalculation of the payment rate for CPT code 15013 as explained in more detail in section II.B. Summary of Errors in the Preamble of this notice, we incorrectly assigned CPT code 15013 (Prepj skn cll ssp agrft 1st) status indicator “T” and are correcting it to “S”. We also incorrectly assigned CPT code 15013 to APC 1567 (New Technology—Level 30 ($6001-$6500)) and are correcting it to APC 1532 (New Technology—Level 32 ($7001-$7500)).

Due to an inadvertent miscalculation of the payment rate for HCPCS code C8002 for the same reason as the error for CPT code 15013, we incorrectly assigned HCPCS code C8002 status indicator “T” and we are correcting it to “S”. We also incorrectly assigned HCPCS code C8002 to APC 1567 (New Technology—Level 30 ($6001-$6500)) and are correcting it to APC 1532 (New Technology—Level 32 ($7001-$7500)).

In Addendum C (Final HCPCS Codes Payable Under the 2025 OPPS by APC), we are making a number of updates to correct the following technical errors:

Due to the errors described in more detail in section II.B Summary of Errors in the Preamble of this notice related to CPT code 15013 and HCPCS code C8002, we are deleting CPT code 15013 and HCPCS code C8002 from the list of HCPCS and CPT codes assigned to APC 1567 (New Technology—Level 30 ($6001-$6500)). We are adding CPT code 15013 and HCPCS code C8002 to the list of HCPCS and CPT codes assigned to APC 1532 (New Technology—Level 32 ($7001-$7500)) in Addendum C.

Due to the incorrect deletion of HCPCS code C9734 described in more detail in section II.B Summary of Errors in the Preamble of this notice, we are adding HCPCS code C9734 back to the list of HCPCS and CPT codes assigned to APC 5115 (Level 5 Musculoskeletal Procedures) in Addendum C.

In the tab titled “2025 FR Device Intensive List”, we inadvertently included two rows for each of CPT codes 0795T, 0801T, 27279, and 93656. The additional rows for each of the codes contain values that were incorrectly calculated. For CPT codes 0795T and 0801T, the additional rows included values calculated using CY 2023 data, when the codes were assigned a status indicator of “E1.” Status indicator “E1” is assigned to items, codes, and services that are not covered by any Medicare outpatient benefit category; are statutorily excluded; or are not reasonable and necessarily. Because procedures assigned status indicator “E1” are not payable under the OPPS, claims data for codes assigned this status indicator should not be used to assign device offset percentages. Accordingly, we are deleting the additional rows that contained incorrect values for these codes. For CPT codes 27279 and 93656, the additional rows included a Device Offset Percentage and Device Offset Amount for each of the codes that was calculated using the APC Device Offset Percentage. But because CPT codes 27279 and 93656 were separately payable in CY 2023, the Device Offset Percentage and Device Offset Amount for each code should have been calculated using CY 2023 claims data. Therefore, we are deleting the additional rows for these codes as well.

In the tabs titled “FR 2025 Device Intensive List” and “2025 FR HCPCS Offsets”, we inadvertently included the incorrect APC Device Offset Percentage for procedures assigned to APC 5463—Level 3 Neurostimulator and Related Procedures. We have revised the APC Device Offset Percentage from 26.11 percent to 26.17 percent.

In the tab titled “2025 FR HCPCS Offsets”, which is described as a “list of the device offset percentages and device offset amounts for all HCPCS codes with CY 2023 claims data,” we inadvertently included device offset percentages based on claims data from procedures that were assigned status indicator “E1” for CY 2023. Because status indicator “E1” is assigned to items, codes, and services that are not covered by any Medicare outpatient benefit category; are statutorily excluded; or are not reasonable and necessary, claims data for procedures assigned this status indicator should not be used to assign device offset percentages as these procedures were not payable under the OPPS in CY 2023 and do not have OPPS claims data. The procedures that were assigned status indicator “E1” for CY 2023 but were included in the “2025 FR HCPCS Offsets” tab in Addendum P were CPT codes 0621T, 0737T, 0764T, 0795T, 0796T, 0801T, and 74263. We corrected the 2025 FR HCPCS Offsets file by deleting the entries for these procedures.

To view the corrected final CY 2025 ASC payment indicators, payment weights, payment rates, multiple procedure discounting indicators, and device offset amounts/device portions in Addendum AA, BB, and FF that resulted from these technical corrections, we refer readers to the Addenda and supporting files on the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ASCPayment/ASC-Regulations-and-Notices.html. Select “CMS-1809-F2” from the list of regulations. All corrected ASC addenda for this correcting document are contained in the zipped folder entitled “Addendum AA, BB, DD1, DD2, and EE” at the bottom of the CMS web page for CMS-1809-F2.

We inadvertently assigned “N” (No) in column D (Subject to Multiple Procedure Discounting) to HCPCS Codes C7500 through C7565 in the list of ASC complexity adjustment codes. We are correcting this error in Addendum AA by revising the procedure discounting status from “N” (No) to “Y” (Yes) for these codes, indicating that the procedures to which these codes correspond are subject to multiple procedure discounting.

As a result of the correction to the OPPS APC and status indicator assignment for the skin cell suspension autograft procedures described by CPT code 15013 and HCPCS code C8002 described in this correction notice, we are revising the multiple procedure discounting status in Column D for CPT code 15013 and HCPCS code C8002 from “Y” (Yes) to “N” (No) indicating that the procedure is not subject to multiple procedure discounting. We are also correcting the OPPS APC assignment from APC 1567 to APC 1532 for CPT code 15013 and HCPCS code C8002. Therefore, in Addendum AA, as a result of the correction to the APC assignment for CPT code 15013 and HCPCS code C8002, we are correcting the Final CY 2025 Payment Weight (Column G) and Final CY 2025 Payment Rate (Column H) for CPT code 15013 and HCPCS code C8002 to reflect the correct APC assignment of APC 1532—New Technology—Level 32 ($7001-$7500).

We inadvertently assigned a payment rate to CPT code 53865 using APC 5374—Level 4 Urology and Related Services—rather than APC 5376—Level 6 Urology and Related Services. In Addendum AA, we are revising the Final CY 2025 Payment Weight and Final CY 2025 Payment Rate column (Column H) to reflect the corrected APC for CPT code 53865.

We inadvertently assigned a final CY 2025 ASC payment rate to brachytherapy APCs that were not designated as Low Volume APCs that was based on the mean unit cost. This affected HCPCS codes:

• C1717 (Brachytx, non-str, hdr ir-192);

• C2616 (Brachytx, non-str, yttrium-90);

• C2634 (Brachytx, non-str, ha, i-125);

• C2638 (Brachytx, stranded, i-125);

• C2639 (Brachytx, non-stranded, i-125);

• C2640 (Brachytx, stranded, p-103);

• C2641 (Brachytx, non-stranded, p-103);

• C2643 (Brachytx, non-stranded, c-131);

• C2698 (Brachytx, stranded, nos), and;

• C2699 (Brachytx, non-stranded, nos).

We are correcting the Final CY 2025 Payment Rate column (Column H) to reflect the geometric mean unit cost for these brachytherapy APCs.

We inadvertently made an error in the Short Descriptor column (Column C) for HCPCS Code J1552 and are correcting it from “Inj, alyglo, 100 mg” to read “Inj, alyglo, 500 mg”.

We inadvertently displayed the incorrect payment rate for nine diagnostic radiopharmaceuticals in the HCPCS A9500 through A9600 range. We are correcting the Final CY 2025 Payment Rates column (Column H) for these radiopharmaceuticals.

We inadvertently assigned CPT code 53865 to APC 5374—Level 4 Urology and Related Services—rather than APC 5376—Level 6 Urology and Related Services. We are revising the Final CY 2025 APC (Column E), Final CY 2025 APC Device Offset Percentage (Column F). Final CY 2025 OPPS Payment Rate (Column G), and Final CY 2025 Device Offset Amount/Device Portion (Column I) to reflect the corrected APC for CPT code 53865.

We made an error in the OPPS APC assignment for CPT code 15013 and HCPCS Code C8002 as described previously. As a result of the correction to the OPPS assignment to APC 1532—New Technology—Level 32 ($7001-$7500)—for CPT code 15013 and HCPCS Code C8002, we are correcting the Final CY 2025 APC (Column E) and Final CY 2025 OPPS Payment Rate (Column G) for these codes to reflect this APC correction.

Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of proposed rulemaking in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide for notice of the proposed rulemaking in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the notice and comment and delay in effective date APA requirements; in cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 60-day comment period and delay in effective date requirements of the Act as well. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal rulemaking requirements for good cause if the agency makes a finding that the notice and comment process are impracticable, unnecessary, or contrary to the public interest. In addition, both section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and an agency includes a statement of support.

We believe that this correction does not constitute a rule that would be subject to the notice and comment or delayed effective date requirements. This document corrects technical and typographical errors in the preamble, regulations text, addenda, and tables included or referenced in the CY 2025 OPPS/ASC final rule with comment period but does not make substantive changes to the policies or payment methodologies that were adopted in the CY 2025 OPPS/ASC final rule with comment period. As a result, this correction is intended to ensure that the information in the CY 2025 OPPS/ASC final rule with comment period accurately reflects the policies adopted in that document.

In addition, even if this were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule with comment period or delaying the effective date would be contrary to the public interest because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the CY 2025 OPPS/ASC final rule with comment period reflects our policies. Furthermore, such procedures would be unnecessary, as we are not altering our payment methodologies or policies, but rather, we are simply correctly implementing the policies that we previously proposed, requested comment on, and subsequently finalized. This correcting document is intended solely to ensure that the CY 2025 OPPS/ASC final rule with comment period accurately reflects these payment methodologies and policies. For these reasons, we believe we have good cause to waive the notice and comment and delayed effective date requirements.

Moreover, even if these corrections were considered to be retroactive rulemaking, they would be authorized under section 1871(e)(1)(A)(ii) of the Act, which permits the Secretary to issue a rule for the Medicare program with retroactive effect if the failure to do so would be contrary to the public interest. As we have explained previously, we believe it would be contrary to the public interest not to implement the corrections in this final rule correction because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the CY 2025 OPPS/ASC final rule with comment period accurately reflects our policies.

In FR Doc. 2024-25521 of November 27, 2024 (89 FR 93912), we are making the following corrections:

1. On page 93913, column 2, fourth paragraph, line 4, the email address for Kelly Wojciechowski is corrected to read “ Kelly.Wojciechowski@cms.hhs.gov ”.

1. On page 94054, third column, last partial paragraph, lines 3 and 4, “CPT code 0899T” is corrected to read “CPT code 0889T”.

2. On page 94055, third column, first partial paragraph, first line, “code 0899T” is corrected to read “code 0889T”.

3. On page 94111, in the heading titled “54. Skin Cell Suspension Autograft (SCSA) Procedures, CPT Codes 15011 Through 15018 (APCs 5051, 5054, and 1567)”, line 4, the figure “1567” is corrected to read “1532”.

4. On page 94114, second column,

a. First partial paragraph,

(1) Lines 1 through 3, “APC 1567 (New Technology—Level 30 ($6001-6500)) with a $6,250.50 payment rate” is corrected to read “APC 1532 (New Technology—Level 32 ($7001-7500)) with a $7,250.50 payment rate”.

(2) Lines 12 through 13, “APC 1567 with a payment rate of $6,250.50” are corrected to read “APC 1532 with a payment rate of $7,250.50”.

b. First full paragraph, lines 12 through 13 “APC 1567 ((New Technology—Level 30 ($6001-$6500))” is corrected to read “APC 1532 (New Technology—Level 32 ($7001-7500))”.

5. On page 94120, second column, second full paragraph, lines 4 through 9 that read “We note that we will replace HCPCS code C9734 with CPT code 5X008 (55882) effective January 1, 2025, as well as assign the underlying claims associated with C9734 to CPT code 5X008 (55882)” are corrected in their entirety to read, “We note that we will crosswalk claims for HCPCS code C9734 to CPT code 5X008 (55882) to determine the APC assignment for CPT code 5X008 (55882) for CY 2025. HCPCS C9734 will continue to be assigned to APC 5115 (Level 5 Musculoskeletal Procedures) in CY 2025.”

6. On page 94368, first column, second footnoted paragraph (footnote 270), lines 4 through 6, the link “ https://www.cms.gov/About-CMS/Agency-Information/OMH/OMH_Dwnld-CMSEquityPlanforMedicare_090615.pdf ” is corrected to read “ https://www.cms.gov/About-CMS/Agency-Information/OMH/OMH_Dwnld-CMS_EquityPlanforMedicare_090615.pdf#:~:text=The%20Centers%20for%20Medicare%20%26%20Medicaid%20Services%20%28CMS%29,evidence%20base%2C%20identifying%20opportunities%2C%20and%20gathering%20stakeholder%20input ”.

7. On page 94380, first column, fourth footnoted paragraph (footnote 316), lines 3 through 5, the link “ https://www.beckersasc.com/asc-coding-billing-and-collections/hopds-vs-ascs-10-considerations-for-2024.html. ” is corrected to read “ https://www.beckersasc.com/asc-coding-billing-and-collections/hopds-vs-ascs-10-considerations-for-2024.html ”.

8. On page 94407, third column, first partial paragraph,

a. Line 19, the punctuation mark “,” is replaced with “.”

b. Lines 19 through 22, the language “which is administered on the first day post-procedure and then followed up at 14 days.” is removed.

9. On page 94411, first column, second footnoted paragraph (footnote 446), lines 4 through 8, the link “ https://p4qm.org/sites/default/files/2023-09/Guidebook-of-Policies-and-Procedures-for-Pre-Rulemaking-Measure-Review-%28PRMR%29-and-Measure-SetReview-%28MSR%29-Final_0.pdf ” is corrected to read “ https://p4qm.org/sites/default/files/2023-09/Guidebook-of-Policies-and-Procedures-for-Pre-Rulemaking-Measure-Review-%28PRMR%29-and-Measure-Set-Review-%28MSR%29-Final_0.pdf ”.

10. On page 94412, third column, first footnoted paragraph (footnote 461), lines 4 through 6, the link: “ https://p4qm.org/sites/default/files/2024-02/PRMR-Hospital-Recommendation-Group-MeetingSummary-Final.pdf ” is corrected to read “ https://p4qm.org/sites/default/files/2024-02/PRMR-Hospital-Recommendation-Group-Meeting-Summary-Final.pdf ”.

11. On page 94416, within table note **** corresponding to Table 163 titled “NEWLY FINALIZED HOSPITAL OQR PROGRAM MEASURE SET BEGINNING WITH THE CY 2027 PAYMENT DETERMINATION”, line 3, section reference “XV.B.3.B” is corrected to read “XV.C.1.b”.

12. On page 94417,

a. Within table note *** corresponding to Table 164 titled “NEWLY FINALIZED HOSPITAL OQR PROGRAM MEASURE SET BEGINNING WITH THE CY 2031 PAYMENT DETERMINATION”, line 3, section reference “XV.B.3.B” is corrected to read section “XV.C.1.b”.

b. Third column, last full paragraph, lines 3 through 10, “(77 FR 68484; 80 FR 70521, 87 FR 72110 through 72112; 78 FR 75097 through 75100; and 88 FR 82004 through 82006, respectively) for information regarding our claims-based, web-based, eCQM, chart-abstracted, PRO-PM, and survey-based data submission and reporting requirements.” is corrected to read “(78 FR 75111 and 75112; 80 FR 70521 through 70522; 86 FR 63863 through 63866; 87 FR 72110 through 72112; 88 FR 82004 through 82009, respectively) for information regarding our claims-based, web-based, survey-based, chart-abstracted, eCQM, and PRO-PM data submission and reporting requirements.”.

13. On page 94442, first column, last paragraph, line 6, the figure “$2.8 million” is corrected to read “2.8 million”.

14. On page 94446, third column, fourth full paragraph, line 2, “that that” is corrected to read “that”.

15. On page 94448, third column, second full paragraph, line 22, “communities that rely upon rely upon” is corrected to read “communities that rely upon”.

16. On page 94452, third column, last paragraph, line 31 “mistrusted the health care at higher” is corrected to read as “mistrusted the health care system at higher”.

17. On page 94455, second column, first fully footnoted paragraph (footnote 586), “As of November 27, 2024, HRSA has not finalized these proposed changes to FORHP's definition of rural.” is corrected to read “As of the development of this final rule, HRSA had not finalized these proposed changes to FORHP's definition of rural.”

18. On page 94481, third column, first partial paragraph, line 12 the word “biannual” is corrected to read “biennial”.

19. On page 94483, first column,

a. Eighth bullet, line 5, the word “biannual” is corrected to read “biennial”.

b. Last bullet, line 5 the word “biannual” is corrected to read “biennial”.

20. On page 94522,

a. Second column, last partial paragraph, line 2, the figure “four” is corrected to read “three”.

b. Third column, first partial paragraph,

(1) Line 1, the word “and” is inserted before “(3)”.

(2) Line 7, the phrase “; and (4)” is corrected to read “. We are also adopting”.

21. On page 94542, third column,

a. First partial paragraph, line 17, the word “biannually” is corrected to read “biennially”.

b. First full paragraph, line 13 the word “biannual” is corrected to read “biennial”.

22. On page 94561,

a. The table title, “Table 207: Four Walls: Accounting Statement: Medicaid Clinic Services Four Walls Exceptions” is corrected to read as “TABLE 207: ACCOUNTING STATEMENT: MEDICAID CLINIC SERVICES FOUR WALLS EXCEPTIONS”

b. Third column, first full paragraph, line 1, section reference “XXVI.B” is corrected to “XXVI.A”.

23. On page 94562,

a. First column,

(1) First full paragraph, line 8, section reference “XXVI.B” is corrected to “XXVI.A”.

(2) Last paragraph, line 8, section reference “XXVI.B” is corrected to “XXVI.A”.

b. Third column, first full paragraph, line 1, section reference “XXVI.C” is corrected to “XXVI.B”.

24. On page 94563,

a. First column, first full paragraph, line 8, section reference “XXVI.C” is corrected to “XXVI.B”.

b. Second column, second full paragraph, line 1, section reference “XXVI.D” is corrected to “XXVI.C”.

c. Third column, first full paragraph, line 8, section reference “XXVI.D” is corrected to “XXVI.C”.

25. On page 94569, first column, first partial paragraph, line 6 the word “biannually” is corrected to read “biennially.”

26. On page 94571, bottom of the page, first column; first partial paragraph, line 12, the word “biannual” is corrected to read “biennial.”

27. On page 94572,

a. Second column, first partial paragraph, line 1, the word “biannual” is corrected to read “biennial”.

b. Third column, first partial paragraph, line 44, the word “biannual” is corrected to read “biennial”.

28. On page 94573, third column; first partial paragraph, line 1, the word “biannual” is corrected to read “biennial”.

Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendments:

On December 12, 2017 the NEA issued a final rule entitled “Federal Civil Penalties Adjustments”  1 which finalized the NEA's June 15, 2017 interim final rule entitled “Implementing the Federal Civil Penalties Adjustment Act Improvements Act”, 2 implementing the 2015 Act (section 701 of Pub. L. 114-74), which amended the Inflation Adjustment Act (28 U.S.C. 2461 note) requiring catch-up and annual adjustments to the NEA's CMPs. The 2015 Act requires agencies make annual adjustments to its CMPs for inflation.

A CMP is defined in the Inflation Adjustment Act as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

These annual inflation adjustments are based on the percentage change in the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October preceding the date of the adjustment, relative to the October CPI-U in the year of the previous adjustment. The formula for the amount of a CMP inflation adjustment is prescribed by law, as explained in OMB Memorandum M-16-06 (February 24, 2016), and therefore the amount of the adjustment is not subject to the exercise of discretion by the Chair of the National Endowment for the Arts.

The Office of Management and Budget has issued guidance on implementing and calculating the 2025 adjustment under the 2015 Act. 3 Per this guidance, the CPI-U adjustment multiplier for this annual adjustment is 1.02598. In its prior rules, the NEA identified two CMPs, which require adjustment: the penalty for false statements under the PFCRA and the penalty for violations of the NEA's Restrictions on Lobbying. With this rule, the NEA is adjusting the amount of those CMPs accordingly.

The inflation adjustments contained in this rule shall apply to any violations assessed after January 15, 2025.

Two CMPs in NEA regulations require adjustment in accordance with the 2015 Act: (1) the penalty associated with the Program Fraud Civil Remedies Act (45 CFR 1149.9) and (2) the penalty associated with Restrictions on Lobbying (45 CFR 1158.400; 45 CFR part 1158, app. A).

The current maximum penalty under the PFCRA for false claims and statements is currently set at $13,945. The post-adjustment penalty or range is obtained by multiplying the pre-adjustment penalty or range by the percent change in the CPI-U over the relevant time period and rounding to the nearest dollar. Between October 2023 and October 2024, the CPI-U increased by a multiplier of 102.598%. Therefore, the new post-adjustment maximum penalty under the PFCRA for false statements is $13,945 × 1.02598 = $14,307.291, which rounds to $14,307. Therefore, the maximum penalty under the PFCRA for false claims and statements will be $14,307.

The penalty for violations of the Restrictions on Lobbying is currently set at a range of a minimum of $24,483 and a maximum of $244,958. The post-adjustment penalty or range is obtained by multiplying the pre-adjustment penalty or range by the percent change in the CPI-U over the relevant time period and rounding to the nearest dollar. Between October 2023 and October 2024, the CPI-U increased by a multiplier of 102.598%. Therefore, the new post-adjustment minimum penalty under the Restrictions on Lobbying is $24,483 × 1.02598 = $25,119.068, which rounds to $25,119 and the maximum penalty under the Restrictions on Lobbying is $244,958 × 1.02598 = $251,322.00884, which rounds to $251,322. Therefore, the range of penalties under the law on the Restrictions on Lobbying shall be between $25,119 and $251,322.

Section 553 of the Administrative Procedure Act (APA) requires agencies to provide an opportunity for notice and comment on rulemaking and also requires agencies to delay a rule's effective date for 30 days following the date of publication in the Federal Register unless an agency finds good cause to forgo these requirements. However, section 4(b)(2) of the 2015 Act requires agencies to adjust civil monetary penalties notwithstanding section 553 of the APA and publish annual inflation adjustments in the Federal Register . “This means that the public procedure the APA generally requires . . . is not required for agencies to issue regulations implementing the annual adjustment.” OMB Memorandum M-18-03.

Even if the 2015 Act did not except this final rule from section 553 of the APA, the NEA has good cause to dispense with notice and comment. Section 553(b)(4)(B), authorizes agencies to dispense with notice and comment procedures for rulemaking if the agency finds good cause that notice and comment are impracticable, unnecessary, or contrary to public interest. The annual adjustments to civil penalties for inflation and the method of calculating those adjustments are established by section 5 of the 2015 Act, as amended, leaving no discretion for the NEA. Accordingly, public comment would be impracticable because the NEA would be unable to consider such comments in the rulemaking process.

Executive Order 12866 (E.O. 12866) established a process for review of rules by the Office of Information and Regulatory Affairs, which is within the Office of Management and Budget (OMB). Only “significant” proposed and final rules are subject to review under this Executive Order. “Significant,” as used in E.O. 12866, means “economically significant.” It refers to rules with (1) an impact on the economy of $100 million; or that (2) were inconsistent or interfered with an action taken or planned by another agency; (3) materially altered the budgetary impact of entitlements, grants, user fees, or loan programs; or (4) raised novel legal or policy issues.

This final rule would not be a significant policy change and OMB has not reviewed this final rule under E.O. 12866. The NEA has made the assessments required by E.O. 12866 and determined that this final rule: (1) will not have an effect of $100 million or more on the economy; (2) will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (3) will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (4) does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients; and (5) does not raise novel legal or policy issues.

This final rule does not have federalism implications, as set forth in E.O. 13132. As used in this order, federalism implications mean “substantial direct effects on the States, on the relationship between the [N]ational [G]overnment and the States, or on the distribution of power and responsibilities among the various levels of government.” The NEA has determined that this final rule will not have federalism implications within the meaning of E.O. 13132.

This final rule meets the applicable standards set forth in section 3(a) and 3(b)(2) of E.O. 12988. Specifically, this final rule is written in clear language designed to help reduce litigation.

Under the criteria in E.O. 13175, the NEA has evaluated this final rule and determined that it would have no potential effects on Federally recognized Indian Tribes.

Under the criteria in E.O. 12630, this final rule does not have significant takings implications. Therefore, a takings implication assessment is not required.

This final rule will not have a significant adverse impact on a substantial number of small entities, including small businesses, small governmental jurisdictions, or certain small not-for-profit organizations.

This final rule will not impose any “information collection” requirements under the Paperwork Reduction Act. Under the Act, information collection means the obtaining or disclosure of facts or opinions by or for an agency by 10 or more nonfederal persons.

This final rule does not contain a Federal 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 one year.

The final rule will not have a significant effect on the human environment.

This final rule would not be a major rule as defined in section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule will not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and export markets.

Section 206 of the E-Government Act requires agencies, to the extent practicable, to ensure that all information about that agency required to be published in the Federal Register is also published on a publicly accessible website. All information about the NEA required to be published in the Federal Register may be accessed at https://www.arts.gov. This Act also requires agencies to accept public comments on their rules “by electronic means.” See heading “Public Participation” for directions on electronic submission of public comments on this final rule.

Finally, the E-Government Act requires, to the extent practicable, that agencies ensure that a publicly accessible Federal Government website contains electronic dockets for rulemakings under the Administrative Procedure Act of 1946 (5 U.S.C. 551 et seq. ). Under this Act, an electronic docket consists of all submissions under section 553(c) of title 5, United States Code; and all other materials that by agency rule or practice are included in the rulemaking docket under section 553(c) of title 5, United States Code, whether or not submitted electronically. The website https://www.regulations.gov contains electronic dockets for the NEA's rulemakings under the Administrative Procedure Act of 1946.

Under this Act, the term “plain writing” means writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience. To ensure that this final rule has been written in plain and clear language so that it can be used and understood by the public, the NEA has modeled the language of this final rule on the Federal Plain Language Guidelines.

The NEA encourages public participation by ensuring its documentation is understandable by the general public, and has written this final rule in compliance with Executive Order 13563 by ensuring its accessibility, consistency, simplicity of language, and overall comprehensibility.

For the reasons stated in the preamble, the NEA amends 45 CFR chapter XI, subchapter B, as follows:

Atlantic BFT fisheries are managed under the 2006 Consolidated HMS Fishery Management Plan (FMP) and its amendments, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ) and consistent with the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ). ATCA is the implementing statute for binding recommendations of the International Commission for the Conservation of Atlantic Tunas. HMS implementing regulations are at 50 CFR part 635. Section 635.27(a) divides the U.S. BFT quota, established by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated HMS FMP and its amendments. NMFS is required under the Magnuson-Stevens Act at 16 U.S.C. 1854(g)(1)(D) to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

As described in § 635.27(a), the current baseline U.S. BFT quota is 1,316.14 mt (not including the 25 mt ICCAT allocated to the United States to account for bycatch of BFT in pelagic longline fisheries in the Northeast Distant Gear Restricted Area). The baseline quota for the General category is 710.7 mt. The General category baseline quota is suballocated to different time periods. Relevant to this action, the baseline subquotas for the January through March time period and for the December time period are 37.7 mt and 37.0 mt, respectively.

Under § 635.27(a)(1)(ii), NMFS has the authority to transfer subquota from one time period to another time period through inseason action after considering determination criteria provided under § 635.27(a)(7). This section focuses on the calculations involved in transferring quota available from the 2025 General category December time period subquota to the 2025 General category January through March time period subquota; the consideration of the determination criteria can be found below after this section.

As stated above, the baseline subquotas for the January through March time period and for the December time period are 37.7 mt and 37.0 mt, respectively. Transferring 20.5 mt from the General category December time period to the General category January through March time period, results in an adjusted January through March time period subquota of 58.2 mt (37.7 mt + 20.5 mt = 58.2 mt), and an adjusted December time period subquota of 16.5 mt (37.0 mt−20.5 mt = 16.5 mt). The General category quota is available for use by Atlantic Tunas General category (commercial) permitted vessels and HMS Charter/Headboat permitted vessels with a commercial sale endorsement when fishing commercially for BFT.

In summary, this transfer results in an adjusted January through March 2025 time period subquota of 58.2 mt and an adjusted December 2025 subquota of 16.5 mt. The General category fishery will remain open until March 31, 2025, or until the adjusted January through March 2025 time period subquota is reached, whichever comes first.

NMFS has considered all of the relevant determination criteria and their applicability to this inseason quota transfer (§ 635.27(a)(7)). These criteria include, but are not limited to, the following:

Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(7)(i)), biological samples collected from BFT landed by General category fishermen and provided by BFT dealers continue to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT in the General category during the January-March time period would support the continued collection of a broad range of data for these studies and for stock monitoring purposes.

NMFS also considered the catches of the General category catches in the December and January through March time periods over the last several years and the likelihood of closure of the January through March segment of the fishery if no adjustment is made (§ 635.27(a)(7)(ii) and (ix)), as well as daily landing trends and the availability of BFT on fishing grounds (§ 635.27(a)(7)(ix)). Without a quota transfer at this time, based on recent catch rates in comparison to the current available quota (37.7 mt), NMFS would likely need to close the General category fishery shortly. Once the fishery is closed, participants would have to stop BFT fishing activities until the next time period begins in June, even though commercial-sized BFT remain available in the areas where General category permitted vessels operate. A quota transfer at this time provides limited additional opportunities to harvest the U.S. BFT quota while avoiding exceeding the current time period's subquota.

Regarding the projected ability of the vessels fishing under the General category to harvest the additional amount of BFT quota transferred before the end of the fishing year (§ 635.27(a)(7)(iii)), NMFS considered General category landings over the last several years and landings to date this year. Landings are highly variable and depend on access to commercial-sized BFT and fishing conditions, among other factors. NMFS may adjust each time period's subquota based on overharvest or underharvest in the prior time period and may transfer subquota from one time period to another time period. By allowing for the current quota transfer, NMFS anticipates that the General category quota would be used before the end of the fishing year. Thus, this quota transfer would allow General category fishermen to take advantage of the availability of BFT on the fishing grounds and provide a reasonable opportunity to harvest the available U.S. BFT quota.

NMFS also considered the estimated amounts by which quotas for other gear categories of the fishery might be exceeded (§ 635.27(a)(7)(iv)) and the ability to account for all 2025 landings and dead discards (§ 635.27(a)(7)(xi)). In the last several years, the total U.S. BFT landings have typically been below the available U.S. quota such that the United States has carried forward the maximum amount of underharvest allowed by ICCAT from one year to the next. NMFS will need to account for 2025 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations, and anticipates having sufficient quota to do that.

NMFS also considered the effects of the transfer on the BFT stock and on accomplishing the objectives of the 2006 Consolidated HMS FMP (§ 635.27(a)(7)(v) and (vi)). This transfer would be with established quotas and subquotas, which are implemented consistent with ICCAT Recommendation 22-10, ATCA, and the objectives of the 2006 Consolidated HMS FMP and amendments. In establishing these quotas and subquotas and associated management measures, ICCAT and NMFS considered the best scientific information available, objectives for stock management and status, and effects on the stock. This quota transfer is in line with the established management measures and stock status determinations. Another principal consideration is the objective of providing opportunities to harvest the available General category quota without exceeding the annual quota, based on the objectives of the 2006 Consolidated HMS FMP and its amendments, including to achieve optimum yield on a continuing basis and to allow all permit categories a reasonable opportunity to harvest available BFT quota allocations (related to § 635.27(a)(7)(x)). Specific to the General category, this includes providing opportunities equitably across all time periods.

NMFS will continue to monitor the BFT fishery closely. Per § 635.5(b)(2)(i)(A), dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustments, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required per § 635.27(a)(4) to report their own catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing https://hmspermits.noaa.gov by using the HMS Catch Reporting app, by using other apps approved by NMFS for HMS reporting, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may access https://hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act (16 U.S.C. 1855(d)) and regulations at 50 CFR part 635 and this action is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and opportunity to provide comment on this action, as notice and comment would be impracticable and contrary to the public interest. Specifically, the regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason adjustments and quota transfers to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Providing prior notice and opportunity for public comment is impracticable and contrary to the public interest as this fishery is currently underway. Based on current landings information, the available time period subquota is projected to be reached shortly. Delaying this action could result in BFT landings exceeding the January through March time period subquota. Additionally, a delay in implementing this transfer would preclude the fishery from harvesting BFT that are currently available on the fishing grounds and that might otherwise become unavailable. This action does not raise conservation and management concerns and would support effective management of the BFT fishery. Transferring quota from the General category December time period to the General category January through March time period does not affect the overall ICCAT-allocated U.S. BFT quota. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria.

For all of the above reasons, the AA finds that pursuant to 5 U.S.C. 553(d), there is good cause to waive the 30-day delay in effective date.

The Regional Administrator of the Greater Atlantic Regional Office monitors Atlantic herring fishery catch in each Management Area based on vessel and dealer reports, state data, and other available information. Regulations at 50 CFR 648.201(a)(1)(i)(A) require implementation of a 2,000-lb (907.2-kg) possession limit for herring for Area 1B beginning on the date that catch is projected to reach 92 percent of the sub-annual catch limit (ACL) for that area. The Magnuson-Stevens Fishery Conservation and Management Act provides authority to implement the possession limit only to the Secretary of Commerce, which has been delegated to the Regional Administrator.

Based on vessel reports, dealer reports, and other available information, the Regional Administrator projects that the herring fleet will have caught 92 percent of the Area 1B sub-ACL by January 8, 2025. Therefore, effective 00:01 hr local time January 8, 2025, through December 31, 2025, a person may not attempt or do any of the following: Fish for; possess; transfer; purchase; receive; land; or sell more than 2,000 lb of herring per trip or more than once per calendar day in or from Area 1B except as provided in §§ 648.201(b) and (c).

Vessels that enter port before 00:01 hr local time on January 8, 2025, may land and sell more than 2,000 lb (907.2 kg) of herring from Area 1B from that trip, provided that catch is landed in accordance with state management measures. Vessels may transit or land in Area 1B with more than 2,000 lb (907.2 kg) of herring on board, provided that: The herring were caught in an area not subject to a 2,000-lb (907.2-kg) limit; all fishing gear is stowed and not available for immediate use; and the vessel is issued a permit appropriate to the amount of herring on board and the area where the herring was harvested.

Also effective 00:01 hr local time, January 8, 2025, through 24:00 hr local time, December 31, 2025, federally permitted dealers may not attempt or do any of the following: Purchase; receive; possess; have custody or control of; sell; barter; trade; or transfer more than 2,000 lb (907.2 kg) of herring per trip or calendar day from Area 1B, unless it is from a vessel that enters port before 00:01 hr local time on January 8, 2025 and catch is landed in accordance with state management measures.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

NMFS finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive prior notice and the opportunity for public comment because it is unnecessary, contrary to the public interest, and impracticable. Ample prior notice and opportunity for public comment has been provided for the required implementation of this action. The requirement to implement this possession limit was developed by the New England Fishery Management Council using public meetings that invited public comment on the measures when they were developed and considered along with alternatives. Further, the regulations requiring implementation of this possession limit also were subject to public notice and opportunity to comment, when they were first adopted in 2014. Herring fishing industry participants monitor catch closely and anticipate potential possession limit adjustments as catch totals approach Area sub-ACLs. The regulation is not discretionary and is designed for implementation as quickly as possible to prevent catch from exceeding limits designed to prevent overfishing while allowing the fishery to achieve optimum yield.

The 2025 herring fishing year began on January 1, 2025. Data indicating that the herring fleet will have landed at least 92 percent of the 2025 sub-ACL allocated to Area 1B only recently became available. High-volume catch and landings in this fishery can increase total catch relative to the sub-ACL quickly, especially in this fishing year where annual catch limits are unusually low. If implementation of this possession limit adjustment is delayed to solicit prior public comment, the 2025 sub-ACL for Area 1B will likely be exceeded; thereby undermining the conservation objectives of the Herring Fishery Management Plan (FMP). If sub-ACLs are exceeded, the excess must be deducted from a future sub-ACL and would reduce future fishing opportunities. The public expects these actions to occur in a timely way consistent with the FMP's objectives. For the reasons stated above, NMFS also finds good cause to waive the 30-day delayed effectiveness in accordance with 5 U.S.C. 553(d)(3).

Authority: 16 U.S.C. 1801 et seq.