Federal Register Vol. 83, No.168,

I. Background

Enacted on May 24, 2018, section 210 of the Economic Growth Act 1 amended section 10(d) of the FDI Act 2 to permit the agencies to examine qualifying IDIs (generally those IDIs that are well capitalized and well managed) with under $3 billion in total assets not less than once during each 18-month period, rather than not less than once during each 12-month period. Prior to the enactment of the Economic Growth Act, qualifying IDIs with under $1 billion in total assets were eligible for an 18-month on-site examination cycle.3

More specifically, the agencies are issuing interim final rules to implement the Economic Growth Act's amendments to sections 10(d)(4) and 10(d)(10) of the FDI Act 4 that allow qualifying IDIs with under $3 billion in total assets to benefit from the extended 18-month examination schedule. In addition, the interim final rules make parallel changes to the agencies' regulations governing the on-site examination cycle for U.S. branches and agencies of foreign banks, consistent with the IBA.5

Section 10(d)(1) of the FDI Act 6 generally requires the appropriate Federal banking agency for an IDI 7 to conduct a full-scope, on-site examination of an IDI at least once during each 12-month period. With the enactment of section 210 of the Economic Growth Act, section 10(d)(4) of the FDI Act authorizes the appropriate Federal banking agency to extend the on-site examination cycle for an IDI to at least once during an 18-month period if the IDI (1) has total assets of less than $3 billion; (2) is well capitalized (as defined in 12 U.S.C.1831o (prompt corrective action)); (3) was found, at its most recent examination, to be well managed 8 and to have a composite condition of “outstanding” or, in the case of an IDI with total assets of not more than $200 million, “outstanding” or “good;” (4) is not subject to a formal enforcement proceeding or order by the FDIC or its appropriate Federal banking agency; and (5) has not undergone a change in control during the previous 12-month period in which a full-scope, on-site examination otherwise would have been required. Section 10(d)(10) of the FDI Act gives each appropriate Federal banking agency discretionary authority to extend eligibility for an 18-month examination cycle, by regulation, to qualifying IDIs with an “outstanding” or “good” composite condition and total assets not greater than $3 billion, if the agency determines that this amount would be consistent with the principles of safety and soundness for IDIs.9

In addition, section 7(c)(1)(C) of the IBA provides that a Federal or a State branch or agency of a foreign bank shall be subject to on-site examination by its appropriate Federal banking agency or State bank supervisor as frequently as a national or State bank would be subject to such an examination by the agency.

The agencies are adopting interim final rules to implement the Economic Growth Act's amendments to sections 10(d)(4) and 10(d)(10) of the FDI Act. The rules implement section 10(d)(4) of the FDI Act to increase, from $1 billion to $3 billion, the total asset threshold under which an agency may apply an 18-month on-site examination cycle for qualified IDIs that have an “outstanding” composite rating.

The agencies also are exercising their discretionary authority under section 10(d)(10) of the FDI Act to extend eligibility for an 18-month examination cycle, by regulation, to qualifying IDIs with an “outstanding” or “good” composite rating with total assets under $3 billion. The agencies have determined that increasing the maximum asset amount limitation for qualifying IDIs with less than $3 billion in total assets is consistent with the principles of safety and soundness.

In determining whether the reduction in examination frequency is consistent with the principles of safety and soundness for such IDIs, the agencies considered the following factors. The agencies agree that extending the examination cycle could make it more likely that there will be a delay in an agency's ability to detect deterioration in an IDI's performance. However, the agencies believe that extending the examination cycle from 12 months to 18 months for these small IDIs with relatively simple risk profiles should not appreciably increase their risk of financial deterioration or failure. In addition, the agencies will continue their off-site monitoring activities and have the ability to examine IDIs more frequently as necessary or appropriate. The agencies also note that, in order to qualify for an 18-month examination cycle, any IDI with total assets under $3 billion—including one with a composite rating of “good”—must meet the other capital, managerial, and supervisory criteria set forth in section 10(d) of the FDI Act and the agencies' implementing regulations.

Considering the agencies' off-site monitoring activities; their discretion to examine IDIs more frequently as necessary; and the capital, managerial, and supervisory criteria in section 10(d) of the FDI Act, the agencies believe that increasing the maximum asset amount limitation for IDIs from less than $1 billion to less than $3 billion is consistent with the principles of safety and soundness. Additionally, the agencies believe this increase will allow the agencies to better focus their supervisory resources on the IDIs and U.S. branches and agencies of foreign banks (collectively, financial institutions) that may present capital, managerial, or other issues of supervisory concern, and therefore has the ability to enhance safety and soundness collectively for all financial institutions. The agencies will continue to monitor financial institutions in this asset range and the impact of the extended examination cycle.

In accordance with section 7(c)(1)(C) of the IBA, the agencies also are making conforming changes to their regulations governing the on-site examination cycle for the U.S. branches and agencies of foreign banks. For the same reasons as discussed above, the agencies believe that extending similar treatment to qualifying U.S. branches and agencies of foreign banks is consistent with the principles of safety and soundness.

The agencies estimate that the interim final rules will increase the number of banks and savings associations that may qualify for an extended 18-month examination cycle by approximately 420 (227 of which are supervised by the FDIC, 100 by the OCC, and 93 by the Board), bringing the total number to 4,798 banks and savings associations.10 Approximately 33 U.S. branches and agencies of foreign banks would be eligible for the extended examination cycle based on the interim final rules (2 of which are supervised by the FDIC, 9 by the OCC, and 22 by the Board).11

The agencies are issuing the interim final rules without prior notice and the opportunity for public comment and the 30-day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA).12 Pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 13 The interim final rules implement the provisions in section 210 of the Economic Growth Act, which was enacted on May 24, 2018. In particular, the interim final rules adopt the statutory increase in the total asset threshold, from under $1 billion to under $3 billion, for qualifying IDIs with an “outstanding” composite rating, and also make available, pursuant to statutory authority, the 18-month examination cycle for qualifying IDIs with an “outstanding” or “good” composite rating and total assets under $3 billion. The interim final rules also make conforming amendments to the agencies' regulations governing the on-site examination cycle for U.S. branches and agencies of foreign banks, as required by statute.

The agencies believe that the public interest is best served by implementing the statutorily amended thresholds as soon as possible. Immediate implementation will reduce regulatory burden on small, well capitalized, and well managed financial institutions while also allowing the agencies to better focus their supervisory resources on those financial institutions that may present capital, managerial, or other issues of supervisory concern. Because the affected financial institutions and agencies must plan and prepare for examinations in advance, the agencies believe issuing interim final rules will provide the certainty necessary to allow the financial institutions and agencies to begin scheduling for examinations according to the new examination cycle period. In addition, the agencies believe that providing a notice and comment period prior to issuance of the interim final rules is unnecessary because the agencies do not expect public objection to the regulations being promulgated as they merely provide the relief that Congress intended. Moreover, because the interim final rules will permit an agency to conduct an on-site examination of financial institutions more frequently than once every 18 months, the agencies retain the ability to maintain the current—or a more frequent—on-site examination schedule for a financial institution if the relevant agency determines it would be necessary or appropriate. For these reasons, the agencies find there is good cause consistent with the public interest to issue the rules without advance notice and comment.14

The APA also requires a 30-day delayed effective date, except for (1) substantive rules which grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause.15 The agencies conclude that, because the rules recognize an exemption, the interim final rules are exempt from the APA's delayed effective date requirement.16 Additionally, the agencies find good cause to publish the interim final rules with an immediate effective date for the same reasons set forth above under the discussion of section 553(b)(B) of the APA.

While the agencies believe there is good cause to issue the rules without advance notice and comment and with an immediate effective date, the agencies are interested in the views of the public and request comment on all aspects of the interim final rules.

Section 722 of the Gramm-Leach-Bliley Act 17 requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The agencies invite your comments on how to make these interim final rules easier to understand. For example:

• Have the agencies presented the material in an organized manner that meets your needs? If not, how could this material be better organized?

• Are the requirements in the interim final rules clearly stated? If not, how could the interim final rules be more clearly stated?

• Do the interim final rules contain language or jargon that is not clear? If so, which language requires clarification?

• Would a different format (grouping and order of sections, use of headings, paragraphing) make the interim final rules easier to understand? If so, what changes to the format would make the interim final rules easier to understand?

• What else could the agencies do to make the regulation easier to understand?

The Regulatory Flexibility Act (RFA) 18 requires an agency to consider whether the rules it proposes will have a significant economic impact on a substantial number of small entities.19 The RFA applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed previously, consistent with section 553(b)(B) of the APA, the agencies have determined for good cause that general notice and opportunity for public comment is unnecessary, and therefore the agencies are not issuing a notice of proposed rulemaking. Accordingly, the agencies have concluded that the RFA's requirements relating to initial and final regulatory flexibility analysis do not apply. Further, the agencies note that no small entities, as defined by the Small Business Administration's rules implementing the RFA, will be affected by the interim final rule's increased asset thresholds.

The Paperwork Reduction Act of 1995 20 states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. Because the interim final rules do not create a new, or revise an existing, collection of information, no information collection request submission needs to be made to the OMB.

Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA),21 in determining the effective date and administrative compliance requirements for a new regulation that imposes additional reporting, disclosure, or other requirements on IDIs, each Federal banking agency must consider any administrative burdens that such regulation would place on IDIs and the benefits of such regulation. In addition, section 302(b) of the RCDRIA requires such new regulation to take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form, with certain exceptions, including for good cause. Because the interim final rules expand eligibility for an 18-month, rather than 12-month, on-site examination schedule and are burden-reducing in nature, the interim final rules do not impose additional reporting, disclosure, or other requirements on IDIs, and section 302 of the RCDRIA therefore does not apply. Nevertheless, the agencies have considered the administrative burdens that such regulations would place on depository institutions and the benefits of such regulations in determining the effective date and compliance requirements. In addition, for the same reasons set forth previously under the discussion of section 553(b)(B) of the APA, the agencies find good cause would exist under section 302 of RCDRIA to publish these interim final rules with an immediate effective date.

Consistent with section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), before promulgating any final rule for which a general notice of proposed rulemaking was published, the OCC prepares an economic analysis of the final rule. As discussed previously, the OCC has determined that the publication of a general notice of proposed rulemaking is unnecessary. Accordingly, the OCC has not prepared an economic analysis of the joint interim final rules under UMRA.

For the reasons set forth in the joint preamble, the OCC amends part 4 of chapter I of title 12 of the Code of Federal Regulations as follows:

For the reasons set forth in the joint preamble, the Board amends parts 208 and 211 of chapter II of title 12 of the Code of Federal Regulations as follows:

For the reasons set forth in the joint preamble, the Board of Directors of the FDIC amends parts 337 and 347 of chapter III of title 12 of the Code of Federal Regulations as follows:

I. Background

FHFA is an independent agency of the Federal government, and the financial safety and soundness regulator of the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, the Enterprises), as well as the Federal Home Loan Banks (collectively, the Banks) and the Office of Finance under authority granted by the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act).1 FHFA oversees the Enterprises and Banks (collectively, the regulated entities) and the Office of Finance to ensure that they operate in a safe and sound manner and maintain liquidity in the housing finance market in accordance with applicable laws, rules and regulations. To that end, FHFA is vested with broad supervisory discretion and specific civil administrative enforcement powers, similar to such authority granted by Congress to the Federal bank regulatory agencies.2 Section 1376 of the Safety and Soundness Act (12 U.S.C. 4636) empowers FHFA to impose civil money penalties under specific conditions. FHFA's Rules of Practice and Procedure regulation (12 CFR part 1209) govern cease and desist proceedings, civil money penalty assessment proceedings, and other administrative adjudications.3 FHFA's Flood Insurance regulation (12 CFR part 1250) governs flood insurance responsibilities as they pertain to the Enterprises.4 FHFA's Implementation of the Program Fraud Civil Remedies Act of 1986 regulation (12 CFR part 1217) sets forth procedures for imposing civil penalties and assessments under the Program Fraud Civil Remedies Act (31 U.S.C. 3801 et seq.) on any person that makes a false claim for property, services or money from FHFA, or makes a false material statement to FHFA in connection with a claim, where the amount involved does not exceed $150,000.5

The Federal Civil Penalties Inflation Adjustment Act of 1990 (“Inflation Adjustment Act”), as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (“Adjustment Improvements Act”), requires FHFA, as well as other Federal agencies with the authority to issue civil money penalties (CMPs), to adjust by regulation the maximum amount of each CMP authorized by law that the agency has jurisdiction to administer.6 The Adjustment Improvements Act required agencies to make an initial “catch-up” adjustment of their CMPs upon the statute's enactment, and further requires agencies to make additional adjustments on an annual basis following the initial adjustment.7

Annual inflation adjustments under the Adjustment Improvements Act are based on the percent change between the October Consumer Price Index for All Urban Consumers (the CPI-U) preceding the date of the adjustment and the October CPI-U for the year before that.

This final rule adjusts the maximum penalty amount within each of the three tiers specified in 12 U.S.C. 4636 by amending the table contained in 12 CFR 1209.80 to reflect the new adjusted maximum penalty amount that FHFA may impose upon a regulated entity or any entity-affiliated party within each tier. The increases in maximum penalty amounts contained in this final rule may not necessarily affect the amount of any CMP that FHFA may seek for a particular violation, which may not be the maximum that the law allows; FHFA would calculate each CMP on a case-by-case basis in light of a variety of factors.8 This rule also adjusts the maximum penalty amounts for violations under the FHFA Flood Insurance regulation by amending the text of 12 CFR 1250.3 to reflect the new adjusted maximum penalty amount that FHFA may impose for violations under that regulation. This rule also adjusts the maximum amounts for civil money penalties under the Program Fraud Civil Remedies Act by amending the text of 12 CFR 1217.3 to reflect the new adjusted maximum penalty amount that FHFA may impose for violations under that regulation.

The Adjustment Improvements Act directs federal agencies to calculate each annual CMP adjustment as the percent change between the CPI-U for the previous October and the CPI-U for October of the calendar year before.9 The maximum CMP amounts for FHFA penalties under 12 U.S.C. 4636 were last adjusted in 2016.10 Since FHFA is making this round of adjustments in calendar year 2018, and the maximum CMP amounts were last set in calendar year 2016, the inflation adjustment amount for each maximum CMP amount was calculated by comparing the CPI-U for October 2015 with the CPI-U for October 2016, resulting in an inflation factor of 1.01636, and then comparing the CPI-U for October 2016 with the CPI-U for October 2017, resulting in an inflation factor of 1.02041. For each maximum CMP calculation, the product of this inflation adjustment and the previous maximum penalty amount was then rounded to the nearest whole dollar as required by the Adjustment Improvements Act, to determine the new adjusted maximum penalty amount.11 The table below sets out these items accordingly.

Similarly, the CMP for FHFA penalties under the Program Fraud Civil Remedies Act were last adjusted in 2016.12 Since FHFA is making this round of adjustments in calendar year 2018, and the maximum CMP amounts were last set in calendar year 2016, the inflation adjustment amount for each maximum CMP amount was calculated as above by comparing the CPI-U for October 2015 with the CPI-U for October 2016, resulting in an inflation factor of 1.01636, and then comparing the CPI-U for October 2016 with the CPI-U for October 2017, resulting in an inflation factor of 1.02041. The table below sets out these items accordingly.

Similarly, the CMP for FHFA penalties under the Flood Insurance regulation were last adjusted in 2016.13 Since FHFA is making this round of adjustments in calendar year 2018, and the maximum CMP amounts were last set in calendar year 2016, the inflation adjustment amount for each maximum CMP amount was calculated as above by comparing the CPI-U for October 2015 with the CPI-U for October 2016, resulting in an inflation factor of 1.01636, and then comparing the CPI-U for October 2016 with the CPI-U for October 2017, resulting in an inflation factor of 1.02041. The table below sets out these items accordingly.

When promulgating any regulation that may have future effect relating to the Banks, the Director is required by section 1313(f) of the Safety and Soundness Act to consider the differences between the Banks and the Enterprises with respect to the Banks' cooperative ownership structure; mission of providing liquidity to members; affordable housing and community development mission; capital structure; and joint and several liability (12 U.S.C. 4513(f)).14 The Director considered the differences between the Banks and the Enterprises, as they relate to the above factors, and determined that this final rule is appropriate, as the maximum civil money penalty amounts are set by statute, as is the manner in which FHFA is required to adjust those amounts, so there is no possibility to vary those provisions in this rule based on consideration of the factors recited in section 1313(f). The inflation adjustments effected by the final rule are mandated by law, Any imposition of civil money penalties would only take place after an enforcement action in which FHFA would have an opportunity to consider all relevant factors. The special features of the Banks identified in section 1313(f) of the Safety and Soundness Act can be accommodated, if appropriate, along with any other relevant factors, when determining any actual penalties.

FHFA finds good cause that notice and an opportunity to comment on this final rule are unnecessary under section 553(b)(B) of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B). The Adjustment Improvements Act states that the annual civil money penalty adjustments shall be made notwithstanding the rulemaking provisions of 5 U.S.C. 553. Furthermore, this rulemaking conforms with and is consistent with the statutory directive set forth in the Adjustment Improvements Act. As a result, there are no issues of policy discretion about which to seek public comment. Accordingly, FHFA is issuing these amendments as a final rule.

Pursuant to the Regulatory Flexibility Act (RFA),15 an agency must prepare a regulatory flexibility analysis for all proposed and final rules that describes the impact of the rule on small entities, unless the head of an 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 publishes a general notice of proposed rulemaking pursuant to the APA.16 As discussed above, FHFA has determined for good cause that the APA does not require a general notice of proposed rulemaking for this rule. Thus, the RFA does not apply to this final rule.

The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) requires that regulations involving the collection of information receive clearance from the Office of Management and Budget (OMB). This rule contains no such collection of information requiring OMB approval under the Paperwork Reduction Act. Consequently, no information has been submitted to OMB for review.

FHFA has determined that this regulatory action does not qualify as either a “rule” or a “major rule” under the Congressional Review Act. See 5 U.S.C. 804(2), (3).

Accordingly, for the reasons stated in the SUPPLEMENTARY INFORMATION and under the authority of 12 U.S.C. 4513b and 12 U.S.C. 4526, the Federal Housing Finance Agency hereby amends subchapters A and C of chapter XII of Title 12 of the Code of Federal Regulations as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace, and amends Class D and Class E airspace at Choctaw NOLF, Milton, FL, to support IFR operations at the airport.

The FAA published a notice of proposed rulemaking (NPRM in the Federal Register (83 FR 9242, March 5, 2018) for Docket No. FAA-2018-0062 to amend Class D airspace and Class E airspace extending upward from 700 feet above the surface at Choctaw NOLF, Milton, FL, and establish Class E surface area airspace at Choctaw NOLF, Milton, FL.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received supporting the proposal.

Class D and E airspace designations are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR part 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by:

Amending Class D airspace at Choctaw NOLF, Milton, FL, by adjusting the geographic coordinates of the airport and the Santa Rosa TACAN navigation aid to be in concert with the FAA's aeronautical database. Also, this action makes an editorial change in the airspace designation replacing the city associated with the airport name from Pensacola, to Milton, to comply with a change to FAA Order 7400.2L, Procedures for Handling Airspace Matters. Additionally, this action replaces the outdated term “Airport/Facility Directory” with the term “Chart Supplement” in the airspace legal description;

Establishing Class E surface area airspace at Choctaw NOLF, Milton, FL, within a 2.5-mile radius of Choctaw NOLF, with an extension from the 2.5-mile radius to 10.5 miles south of the Santa Rosa TACAN, for the safety of aircraft landing and departing the airport after the air traffic control tower closes; and Amending Class E airspace extending upward from 700 feet above the surface at Choctaw NOLF, Milton, FL, by adjusting the geographic coordinates of the airport to be in concert with the FAA's aeronautical database. This action also makes an editorial change by removing the airport name, Choctaw Outlying Field, from the airspace designation, which now becomes Milton, FL.

This action amends the geographic coordinates of these airports and the Keesler TACAN navigation aid to be in concert with the FAA's aeronautical database.

Class D and Class E airspace designations are published in Paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class D airspace at San Marcos Regional Airport, Austin, TX; establishes Class E airspace designated as a surface area at Georgetown Municipal Airport, Georgetown, TX, and San Marcos Regional Airport; and amends Class E airspace extending upward from 700 feet above the surface at San Marco Regional Airport and Lockhart Municipal Airport, Lockhart, TX, to support IFR operations at these airports.

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (83 FR 25971; June 5, 2018) for Docket No. FAA-2018-0138 to amend Class D airspace at San Marcos Regional Airport, Austin, TX; establish Class E airspace designated as a surface area at Georgetown Municipal Airport, Georgetown, TX, and San Marcos Regional Airport; and amend Class E airspace extending upward from 700 feet above the surface at San Marco Regional Airport and Lockhart Municipal Airport, Lockhart, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E airspace designations are published in paragraphs 5000, 6002, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71:

Amends the location in the header of the airspace legal description of the Class D airspace from San Marcos, TX, to Austin, TX, to coincide with the FAA's aeronautical database; amends the radius to within a 4.3-mile radius (increased from a 4.2-mile radius) of San Marcos Regional Airport (formerly San Marcos Municipal Airport), Austin, TX; adds an extension 1.0 mile each side of the 306° bearing from the San Marcos Regional: RWY 13-LOC extending from the 4.3-mile radius to 4.6 miles northwest of the airport; updates the name of the airport to coincide with the FAA's aeronautical database; and makes an editorial change to the airspace legal description replacing “Airport/Facility Directory” with “Chart Supplement”;

Establishes Class E airspace designated as a surface area within a 4.3-mile radius of San Marcos Regional Airport, Austin, TX, with an extension 1.0 mile each side of the 306° bearing from the San Marcos Regional: RWY 13-LOC extending from the 4.3-mile radius to 4.6 miles northwest of the airport; and with an extension 1.0 mile each side of the 313° bearing from the airport from the 4.3-mile radius to 5.0 miles northwest of the airport; and with an extension 1.0 mile each side of the 268° bearing from the airport from the 4.3-mile radius to 4.4 miles west of the airport; and with an extension 1.0 mile each side of the 358° bearing from the airport from the 4.3-mile radius to 4.4 miles north of the airport;

Establishes Class E airspace designated as a surface area within a 4.1-mile radius of Georgetown Municipal Airport, Georgetown, TX; and

Amends the location in the header of the airspace legal description of the Class E airspace extending upward from 700 feet above the surface from San Marcos, TX, to Austin, TX, to coincide with the FAA's aeronautical database; amends the radius to within a 6.8-mile radius (increased from a 6.7-mile radius) of San Marcos Regional Airport (formerly San Marcos Municipal Airport), Austin, TX; amends the extension to the northwest of the airport to 12.0 miles (increased from 11.1 miles); amends the extension to the east of the airport to 10.5 miles (increased from 10.4 miles); amends the extension to the southeast of the airport to 9.7 miles (increased from 9.6 miles); amends the extension to the south of the airport to 10.5 miles (increased from 10.4 miles); and amends the radius to within 6.4-miles (increased from a 6.3-mile radius) of Lockhart Municipal Airport, Lockhart, TX, included in the Austin, TX, airspace legal description.

This action is at the request of Austin ATCT/TRACON to establish part-time Class E airspace designated as a surface areas at Georgetown Municipal Airport and San Marcos Regional Airport and to review the associated airspace for the safety and management of IFR operations at these airports.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

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 requirements of 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 Alabama program effective May 20, 1982. You can find background information on the Alabama program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Alabama program in the May 20, 1982, Federal Register (47 FR 22030). You can also find later actions concerning the Alabama program and program amendments at 30 CFR 901.10, 901.15, and 901.16.

By email dated August 14, 2017 (Administrative Record No. AL-0672), Alabama sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.) at its own initiative.

We announced the receipt of the proposed amendment in the January 22, 2018, Federal Register (83 FR 2953). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on February 21, 2018. We received four public comments (Administrative Record No. AL-0672-03) that are addressed in the Public Comments section of IV, Summary and Disposition of Comments, below.

We are approving the amendment as described below. The following are findings we made concerning Alabama's amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not specifically discuss below concerning non-substantive wording or editorial changes can be found in the full text of the program amendment available at www.regulations.gov.

Alabama proposed to revise its regulations at Alabama Administrative Code 880-X-8B-.07, increasing coal mining permit fees to adequately fund the ASMC for the purposes of reviewing, administering, inspecting, and enforcing surface coal mining permits in Alabama.

By this amendment, Alabama is:

(1) Increasing the initial acreage fee from $35.00 per acre to $75.00, to be paid on each acre in a permit covered by a performance bond prior to the initiation of operations on the permit (or on an increment if increments are used), and to be paid on all bonded acreage covered by a permit renewal;

(2) Increasing the basic fee for a coal exploration permit application from $2,000.00 to $2,500.00;

(3) Increasing the basic fee for a permit renewal application from $1,000.00 to $2,500.00;

(4) Increasing the basic fee for a permit transfer application from $200.00 to $500.00;

(5) Adding an annual acreage fee for expired permits of $15.00, per acre, to be paid by December 31st of each year on each acre covered by a performance bond as of October 1st of the year; and

(6) Adding the inspection of permits to the ASMC's uses for the deposited permit fees.

Alabama fully funds its share of costs to regulate the coal mining industry with fees paid by the coal industry. The proposed fee revisions are intended to provide adequate funding to pay the State's cost of operating its regulatory program. The ASMC does not expect the increase in permit fees to exceed the actual or anticipated cost of reviewing, administering, inspecting, and enforcing surface coal mining permits in Alabama.

We find that Alabama's fee changes are consistent with the discretionary authority provided by the Federal regulation at 30 CFR 777.17. Therefore, we are approving Alabama's revision.

We asked for public comments on the amendment. As noted in section II, we received four comments (Administrative Record No. AL-0672-03). The four commenters provided comments that were outside the scope of the proposed amendment and not germane to the topic of surface coal mining in general. We are not addressing these comments in this final rule for these reasons. The full texts of these comments are available at www.regulations.gov.

On August 21, 2017, pursuant to 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 Alabama program (Administrative Record No. AL-0672-02). 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 Alabama 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 August 21, 2017, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. AL-0672-02). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On August 21, 2017, we requested comments on the amendment (Administrative Record No. AL-0672-02). We did not receive any comments.

Based on the above findings, we are approving the Alabama amendment that was submitted on August 14, 2017 (Administrative Record No. AL-0672).

To implement this decision, we are amending the Federal regulations at 30 CFR part 901 that codify decisions concerning the Alabama 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 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 rulemaking does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

Pursuant to Office of Management and Budget (OMB) Guidance dated October 12, 1993, the approval of state program amendments is exempted from OMB review under Executive Order 12866.

The Department of the Interior has reviewed this rule as required by Section 3(a) of Executive Order 12988. The Department has 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 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 Alabama drafted.

This rule is not a “[p]olicy that [has] Federalism implications” as defined by Section 1(a) of Executive Order 13132 because it does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Instead, this rule approves an amendment to the Alabama program submitted and drafted by that State. OSMRE reviewed the submission with fundamental federalism principles in mind as set forth in Section 2 and 3 of the Executive Order and with the principles of cooperative federalism as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such, pursuant to Section 503(a)(1) and (7)(30 U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the program amendment to ensure that it is “in accordance with” the requirements of SMCRA and “consistent with” the regulations issued by the Secretary pursuant to SMCRA.

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

Executive Order 13211 of May 18, 2001, 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 rulemaking is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

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

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

The Department of the Interior certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rulemaking would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

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

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

For the reasons set out in the preamble, 30 CFR part 901 is amended as set forth below:

I. Background on the Alabama Program II. Submission of the Amendment III. OSMRE's Findings IV. Summary and Disposition of Comments V. OSMRE's Decision VI. Procedural Determinations I. Background on the Alabama 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 requirements of 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 Alabama program effective May 20, 1982. You can find background information on the Alabama program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Alabama program in the May 20, 1982, Federal Register (47 FR 22030). You can also find later actions concerning the Alabama program and program amendments at 30 CFR 901.10, 901.15, and 901.16.

By email dated June 21, 2017 (Administrative Record No. AL-0671), Alabama sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq.) at its own initiative.

We announced the receipt of the proposed amendment in the January 29, 2018, Federal Register (83 FR 4011). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on February 28, 2018. We received 13 public comments (Administrative Record No. AL-0671-03) that are addressed in the Public Comments section of IV, Summary and Disposition of Comments, below.

We are approving the amendment as described below. The following are findings we made concerning Alabama's amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not specifically discuss below concerning non-substantive wording or editorial changes can be found in the full text of the program amendment available at www.regulations.gov.

Code of Alabama Section 9-16-83 Permits—Contents of application; reclamation plan; copy of application filed for public inspections; insurance; blasting plan.

Alabama proposed revisions to its regulations at Code of Alabama section 9-16-83, allowing the ASMC to revise its current permit fee collection procedures from the term of the mine permit to enable the collection of permit fees over the entire life of the mine. The revision also defines the life of the mine to mean the term of the permit and the time required to successfully complete all surface coal mining and reclamation activities and obtain a full release of the performance bond for each bonded area.

We find that Alabama's proposed amendments do not make its rules or regulations less effective than the Federal regulations governing permit fees found at 30 CFR 777.17. Therefore, we are approving Alabama's revision.

We asked for public comments on the amendment. As noted in section II, we received 13 comments (Administrative Record No. AL-0671-03). The 13 commenters provided comments that were outside the scope of the proposed amendment and not germane to the topic of surface coal mining in general. We are not addressing these comments in this final rule for these reasons. The full texts of these comments are available at www.regulations.gov.

On July 27, 2017, pursuant to 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 Alabama program (Administrative Record No. AL-0671-02). 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 Alabama 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 July 27, 2017, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. AL-0671-02). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On July 27, 2017, we requested comments on the amendment (Administrative Record No. AL-0671-02). We did not receive any comments.

Based on the above findings, we are approving the Alabama amendment that was submitted on June 21, 2017, (Administrative Record No. AL-0671).

To implement this decision, we are amending the Federal regulations at 30 CFR part 901 that codify decisions concerning the Alabama 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 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 rulemaking does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

Pursuant to Office of Management and Budget (OMB) Guidance dated October 12, 1993, the approval of state program amendments is exempted from OMB review under Executive Order 12866.

The Department of the Interior has reviewed this rule as required by Section 3(a) of Executive Order 12988. The Department has 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 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 Alabama drafted.

This rule is not a “[p]olicy that [has] Federalism implications” as defined by Section 1(a) of Executive Order 13132, because it does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Instead, this rule approves an amendment to the Alabama program submitted and drafted by that State. OSMRE reviewed the submission with fundamental federalism principles in mind as set forth in Section 2 and 3 of the Executive Order and with the principles of cooperative federalism as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such, pursuant to Section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the program amendment to ensure that it is “in accordance with” the requirements of SMCRA and “consistent with” the regulations issued by the Secretary pursuant to SMCRA.

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

Executive Order 13211 of May 18, 2001, 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 rulemaking is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

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

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

The Department of the Interior certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rulemaking would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

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

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

For the reasons set out in the preamble, 30 CFR part 901 is amended as set forth below:

Section 503(a) of SMCRA allows a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, 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 Ohio program effective August 16, 1982. Notice of the conditional approval of Ohio's permanent regulatory program was published in the Federal Register on August 10, 1982 (47 FR 34688). You can also find later actions concerning Ohio's program and program amendments at 30 CFR 935.11, 935.15, and 935.30.

For background purposes, the Commission is an adjudicatory board established pursuant to Ohio Revised Code (ORC) section 1513.05. The Commission is the office to which administrative appeals may be filed by any person claiming to be aggrieved or adversely affected by a decision of the Ohio Department of Natural Resources, Chief of the Division of Mineral Resources Management (DMRM), relating to mining and reclamation issues. Following an adjudicatory hearing, the Commission affirms, vacates, or modifies the DMRM Chief's decision. The Commission is comprised of eight members appointed by the Governor of Ohio. Members represent a variety of interests relevant to mining and reclamation issues. The Commission adopts rules to govern its procedures. The Commission's rules are found at OAC section 1513-3-01 through 1513-3-22 and are the subject of the current amendment to the Ohio program. By letter dated November 6, 2013, Ohio submitted an amendment to its program, (Administrative Record No. OH-2192-01). Ohio's submittal was prompted by requirements within the Ohio statute that all state agencies must review their administrative rules every five years. Consistent with this requirement, the Commission revised its rules to ensure an orderly, efficient, and effective appeal process. By submitting the amendment to OSMRE, Ohio exercised its ability to revise the Ohio program pursuant to the additional flexibility afforded by the revised Federal regulations at 30 CFR 732.17, and SMCRA, as amended, to improve operational efficiency of the Ohio program and to ensure Ohio's proposed provisions are consistent, and in accordance, with SMCRA and are no less effective than the corresponding Federal regulations.

OSMRE announced receipt of the proposed amendment in the May 20, 2014, Federal Register (79 FR 28854). In the same document, OSMRE opened the public comment period and provided an opportunity for a public hearing or meeting.

OSMRE did not hold a public hearing or meeting, as neither were requested. The public comment period closed on June 19, 2014. OSMRE did not receive any comments.

Following is a summary of various provisions of the amendment that Ohio submitted, as well as OSMRE's findings on whether those provisions are consistent, and in accordance, with SMCRA and are no less effective than the Federal regulations at 30 CFR 732.15 and 732.17. As described below, OSMRE is approving the amendment with the exception of two provisions in the proposed rule, one at section 1513-3-07(A), relating to the intervention of a party, and the other at 1513-3-07(D)(4), relating to the effect of intervention. Any revisions that we do not specifically discuss below concern non-substantive wording or editorial changes.

These changes clarify existing definitions and provide additional definitions. Specifically, the definition of “appellant” is clarified to explicitly state that actions of the DMRM Chief are subject to appeal to the Commission. The definition of “final order” clarifies that the resolution of matters presented on appeal will be in writing and consistent with section 1513-3-19 of the OAC. The definition of “full party” is added. This definition will define “full party” to include the appellant, the appellee, and any intervenor participating in an appeal as defined by the OAC at section 1513-3-07 entitled, “Intervention.” Additionally, the term, “interested persons in an appeal pending before the Commission” is added. This term, as approved, defines interested person as the appellant, the appellee, any intervenors, or and any other persons who have notified the Commission of an interest in a pending appeal and have requested to be notified of hearings in said appeal. The definition of “intervenor” is modified to remove the word “one” and replace it with the term, “any person.” The definition of “person” is modified to encompass limited liability companies. Within the definition of “regular business hours” the terms “chairman” and “vice-chairman” are replaced by “chairperson” and “vice-chairperson,” respectively. The remaining modifications renumber the terms to facilitate the addition of new terms.

OSMRE Finding: We have determined that the definitions of “appellant,” “final order,” “full party,” “interested persons in an appeal pending before the Commission,” and “regular business hours” do not have Federal counterparts. However, they are not inconsistent with SMCRA or the Federal regulations. Therefore, we approve these definitions. The revised definition of “intervenor” remains consistent with its Federal counterpart at 43 CFR 4.1110 and is therefore approved. There is no direct Federal counterpart to the revised portion of Ohio's definition of “person,” as the Federal counterpart does not specifically include limited liability companies. However, the Federal definition does include corporations and partnerships; limited liability companies are essentially amalgams of those two business structures. Therefore, the change to the State's definition does not render it inconsistent with the Federal regulations at 30 CFR 700.5, and we are approving the change.

Paragraph (B) of Section 1513-3-02, which is entitled, “Quorum,” is modified to clarify the conditions for satisfying quorum requirements. Four members of the Commission must be present to qualify as a quorum, and an action by the Commission is not valid unless at least four members concur.

Additionally, the rule clarifies the procedure in the event concurrence is not reached. As amended, four members must agree that concurrence is not met. Further, when concurrence is not met, the existing record of proceedings is to be submitted to all members of the Commission who did not attend any portion of the proceedings. These members may determine if they wish to participate in the appeal. Following review of the record, they must participate in the rendering of a decision. The provision for a tied vote is eliminated.

The amendment provides that, in the event that a concurrence cannot be reached, a decision must be rendered stating such and an Order must be issued affirming the action of the DMRM Chief under review.

Furthermore, the rule clarifies that in the event a Commission member considered as part of the quorum misses any part of the proceeding, he or she must review the record before participating in the rendering of a decision. Audio-electronic hearings before the Commission constitute the official record of the hearing. However, other methods of creating the official record are permitted upon the Commission's discretion, by joint motion of the parties, or by motion of a party and subsequent approval by the Commission. Additionally, the issuance and service of subpoenas must comply with the Ohio Rules of Civil Procedure, and, as applicable, section 119.094 of the ORC, including its requirement that a fee must be paid to witnesses outside the county in which a hearing must be held.

OSMRE Finding: We have determined that the provisions in this section do not have direct Federal counterparts. However, they are not inconsistent with the Federal regulations at 43 CFR 4.2, which governs, generally, membership of administrative boards and decisions of those boards. Therefore, we approve the proposed changes to OAC 1513-3-02.

The rule clarifies that any party may appear on their own behalf or may be represented by an attorney at law admitted to practice according to Ohio law. This includes the admittance of attorneys pro hac vice.

OSMRE Finding: We have determined that the provisions in this section are consistent with the Federal regulations at 43 CFR 1.3 and 4.3, which govern, respectively, who may practice in Departmental administrative proceedings, and representation before appeals boards. Therefore, we approve the changes to OAC 1513-3-03.

Although the majority of the changes to this section are clerical and non-substantive, the rule clarifies that email addresses, if available, should be included in the notice of appeal. Additionally, appellants must include a copy of the written notice, order or decision of the DMRM Chief to be reviewed. Appellants are required to comply with the requirements of section 1513.02 of the ORC, pertaining to the power and duties of the DMRM Chief, and must include and forward the amount of any penalty for placement in a penalty fund. The rule adds a section describing information that the appellant may include in the notice of appeal. Appellants may, but are not required to, identify the area to which the notice, Order, or decision relates; state whether or not the Commission is requested to view the site; and state whether or not the appellant waives the right to have the hearing within the time frames established in section 1513.13(B), Appeal of notice of violation, order or decision to reclamation commission of the ORC.

When filing a notice of appeal pertaining to the review of a decision to approve or disapprove a permit application, an appellant must comply with section 1513.07, Coal mining and reclamation permit of the ORC, and must file the notice of appeal within 30 days of notice of the DMRM Chief's determination.

It is further clarified that a notice of appeal is deemed filed when complete notice has been provided. Further, a notice of appeal may be amended without leave of the Commission during the time allowed for original filing. However, amendment of a notice of appeal may not be employed to cure jurisdictional defects in the filing following the close of this time period. Following the close of this time period, a notice of appeal may be amended by leave of the Commission.

OSMRE Finding: We have determined that the provisions in this section are consistent with the Federal regulations governing the varying types of administrative appeals of decisions of OSMRE. These regulations are at 43 CFR 4.1107, 4.1115, 4.1153, 4.1164, 4.1184, 4.1263, 4.1282, 4.1303, 4.1363, 4.1372, and 4.1382. Therefore, we approve the changes to OAC 1513-3-04.

This section of the rule clarifies that the filing of a notice of appeal must conform to section 1513.13 of the ORC, Appeal to the Commission. The rule alters the definition of when a notice of appeal is deemed filed. The proposed amendment states that a notice of appeal will be deemed filed when received or if the notice of appeal is sent by certified mail, registered mail, or express mail, it will be deemed filed on the date of the postmark placed upon the sender's receipt by the postal service. However, documents requesting temporary relief are deemed filed when received by the Commission. Additionally, all filings other than a notice of appeal or a request for temporary relief, that are not sent to the Commission by certified mail, registered mail, or express mail will be deemed filed with the Commission on the day on which the filings are received, and those that are sent by such means, will be deemed filed on the postmark date placed upon the sender's receipt by the postal service. Further, following initiation of an appeal, the Commission may, through order, establish a filing and service protocol, which may include the electronic transmission of documents.

OSMRE Finding: We have determined that the provisions in this section are consistent with the Federal regulations at 43 CFR 4.1107, which governs the filing of documents, and 43 CFR 4.1109, which governs service of documents. Therefore, we approve the changes to OAC 1513-3-05.

The majority of the changes to this section are non-substantive and consist of renumbering for clarity. However, section (C)(1) is altered to definitively read that the Commission may not lengthen or reduce the time period allowed for any response to, or filing of, a request for temporary relief.

OSMRE Finding: We have determined that the provisions in this section do not have direct Federal counterparts. However, they are not inconsistent with the Federal regulations at 43 CFR 4.1261 and 4.1264, which govern, respectively, applications for temporary relief and responses thereto. Therefore, we approve the changes to OAC 1513-3-06.

Ohio submitted a revision to this rule to require that any person seeking leave to intervene in an appeal before the Commission must do so within ten days prior to the beginning of an evidentiary hearing on the merits of an appeal, unless waived by the Commission for extraordinary cause. OSMRE is not approving this section of the amendment as it is inconsistent with the corresponding provisions of the Federal regulations found at 43 CFR 4.1110(a). The Federal counterpart allows any person, including a State or OSMRE, to petition to intervene at any stage of a proceeding. The provision proposed by Ohio prejudices a potential intervenor by imposing time limits on petitions to intervene. Although the proposed revision would allow intervention after the ten days preceding an evidentiary hearing, upon waiver by the Commission, the potential intervenor must still demonstrate extraordinary cause. This additional hurdle is not imposed by the Federal counterpart. Therefore, OSMRE is not approving the following sentence in section 1513-3-07(A), of the proposed amendment: “A petition for leave to intervene must be filed at least ten days prior to the beginning of an evidentiary hearing on the merits of an appeal, unless waived by the commission for extraordinary cause.”

Also, the deletion of 1513-3-07(D)(4) is less effective than the Federal regulations found at 43 CFR 4.1110. This deletion would prevent the Commission from considering the effect of intervention on the agency's ability to implement its statutory mandates. However, the Federal regulation at 43 CFR 4.1110(d)(4) explicitly allows the IBLA to consider this effect in deciding whether intervention is appropriate. The deletion of this provision in the OAC would render the Ohio program less effective by preventing its statutory mandate from receiving due consideration in Commission decisions on intervention. Therefore, OSMRE is not approving the deletion of OAC 1513-3-07(D)(4).

There is only one other substantive amendment to this section. The change, at section 1513-13-07(F), will allow the filing of amicus briefs and oral argument at hearing by amicus curiae upon leave by, and at the discretion of, the Commission. This provision does not have direct Federal counterparts. However, it is not inconsistent with relevant sections of 43 CFR part 4. Therefore, this provision of OAC 1513-3-07 is approved.

The amendments to this section are non-substantive and primarily consist of language to make references gender neutral. Therefore, the amendments are approved.

Previous discovery rules are amended to clarify parties to an appeal may obtain discovery in accordance with the provisions of rules 26 through 36 of the Ohio Rules of Civil Procedure. Additionally, the rule explains that all parties, including intervenors, are subject to discovery and that discovery from non-parties must be done through subpoena. In the event a party fails to obey an order to compel or permit discovery issued by the Commission, the Commission may make such orders in regard to the failure as it deems just.

OSMRE Finding: We have determined that the provisions in this section are consistent with the Federal regulations at 43 CFR 4.1130 through 4.1141. Therefore, we approve the changes to OAC 1513-3-10.

This revision moves the provision at section (B), which allows a party to make a written motion requesting a hearing to be conducted before the full Commission, rather than before a hearing officer for the Commission, to section 1513-3-18, Reports and recommendations of the hearing officer. The revision to this section also provides that objections to jurisdiction are non-waivable and may be raised at any point in an appeal, consistent with the Ohio Rules of Civil Procedure.

OSMRE Finding: We have determined that the provisions in this section do not have direct Federal counterparts. However, they are not inconsistent with the Federal regulations at 43 CFR 4.1112. Therefore, we approve OAC 1513-3-11.

This revision allows the Commission or its hearing officer, at its own initiative, or at the request of any party, to schedule and hold pre-hearing conferences on issues on appeal.

OSMRE Response: We have determined that the proposed change to this section is consistent with 43 CFR 4.1121(b). Therefore, we are approving the change to OAC 1513-3-12.

This rule specifies the locations of Commission hearings. It also clarifies the circumstances in which the Commission will conduct site views of mining operations, reclamation operations, or other relevant features. The rule also explicitly states that the Commission will control and direct the manner of conducting a site view. Specifically, where a site view is conducted on property subject to a mining and reclamation permit, parties must be informed prior to the site view of any necessary personal protective equipment, including hard hat, safety glasses, hearing protection, safety-toed shoes or boots and additional equipment that may be required on mine property as determined by the mine operator. Additionally, the Commission reserves the right to limit the number of persons who participate in the site view. Additionally, a hearing related to a cessation of mining or a motion for temporary relief must be held in proximity to the subject area of the hearing for the convenience of the Commission and the parties. All other proceedings will continue to be held in Columbus, Ohio, or at any convenient public location selected by the Commission.

OSMRE Response: We have determined that the provision regarding the location for hearings related to temporary relief, has no direct Federal counterpart, but is not inconsistent with the Federal regulation found at 43 CFR 4.1106, which governs location of hearing sites, generally. The Federal regulation states that the administrative law judge must consider convenience of the parties in determining the hearing site. The remaining provisions in this section do not have Federal counterparts. However, they are not inconsistent with SMCRA or its implementing regulations. Therefore, we are approving the changes to OAC 1513-3-14.

The Commission is given discretion to administer consolidated appeals in the manner it deems most appropriate.

OSMRE Response: We have determined that the provision in this section is consistent with the Federal regulation at 43 CFR 4.1113, which grants the administrative law judge the authority to consolidate proceedings. Therefore, we are approving OAC 1513-3-15.

This rule applies to any person participating in an appeal before the Commission and definitively states that the Commission will determine the conduct of the hearing and the order of the presentation of evidence. Additionally, it further clarifies that the Commission is not bound by the formal rules of evidence as promulgated by the Ohio Supreme Court. The rule also establishes a procedure for in-camera inspection of documents claimed to contain proprietary business information or trade secrets. Additionally, the rule specifically details the number of copies of proposed exhibits a party must make available. The rule also adds a provision to clarify that a continuing objection is sufficient to preserve objection to an area of evidence. In regard to written testimony, affidavits may be admitted only if the evidence is otherwise admissible and all full parties agree that affidavits may be used in lieu of oral testimony. This alteration is limiting as it adds the adjective “full,” thus excluding certain parties. Parties wishing to use affidavits in lieu of oral testimony must serve all full parties with a copy of the affidavit at least 15 days before a hearing. It is clarified that in the event a declarant is unavailable, testimony may be offered in compliance with rule 804 of the Ohio Rules of Evidence. As proposed, objections to deposition testimony must be resolved in accordance with rule 32 of the Ohio Rules of Civil Procedure. Further, in instances when a party is attempting to use written testimony, any full party must present the Commission a schedule of objections to the written testimony prior to the commencement of the hearing. This is a change to the former rule that allowed objection at the hearing following receipt of the testimony into evidence. Regarding the presentation of witnesses, the Commission may require that a witness be called only once during a hearing and that the parties conduct all examinations at the time when the witness is called to testify. An Ohio notary may be given authority to administer oaths and affirmations to witnesses. Further, the Commission is given authority to require the parties to submit written closing arguments, post-hearing briefs, or proposed findings of fact and conclusions of law.

OSMRE Finding: We have determined that the provisions in this section are not inconsistent with the Federal regulations found at 43 CFR 4.1120-4.1129. Therefore, we are approving the changes to OAC 1513-3-16.

The adjective “full” is added to section (B), relative to agreement to settle. This addition limits settlements to those where all parties (i.e., appellant, appellee, and intervenor, if any) agree to do so. In the event an appeal is settled during the course of a hearing, the parties must enter into the record a statement acknowledging that they have reached an agreement that all issues have been resolved, and that a withdrawal of the appeal will be filed.

OSMRE Finding: We have determined that the provisions in this section are consistent with the Federal regulations at 43 CFR 4.1111. Therefore, we are approving the changes to OAC 1513-3-17.

Section 1513-3-11(B), discussed above, is inserted in this section. This section allows a party to make a written motion requesting that a hearing be conducted before the full Commission, rather than before a hearing officer for the Commission.

The existing regulations required Reports and Recommendations of hearing officers to be submitted to the Commission within a time reasonably sufficient to allow the Commission to issue timely Orders. This amendment incorporates a proviso to that rule that in the event a decision before a hearing officer must be rendered within a specified time period, the appeal will be heard by the Commission, rather than by a hearing officer, unless there has been a waiver of the right to an expedited hearing.

OSMRE Findings: We have determined that the provisions in this section do not have direct Federal counterparts. However, these provisions are not inconsistent with the Federal regulations at 43 CFR 4.1120 through 4.1129. Therefore, we are approving the changes to OAC 1513-3-18.

This rule clarifies the procedures the Commission will follow when issuing decisions. Additionally, the rule allows the remission, within 30 days after issuing a final decision, of pre-paid civil penalties, where penalties are under appeal. The rule also provides more detailed information about the procedures that will be followed if errors are found in Commission decisions. Specifically, during the time period after a final decision has been issued by the Commission, clerical mistakes in the final decision and errors therein from oversight or omission may be corrected before an appeal of the Commission's final decision is filed. Thereafter, while an appeal is pending before an appellate court, a final decision may be so corrected with leave of the court. However, the correction of a clerical mistake or error in a final decision does not extend the time for filing a notice of appeal in the appellate court. Further, this rule extends the time the Commission may remit, transfer, or accept payment of an increased penalty assessment amount from fifteen days to thirty days.

OSMRE Finding: We have determined that most of the provisions in this section do not have direct Federal counterparts. However, these provisions are not inconsistent with SMCRA or its implementing regulations, nor inconsistent with Departmental hearings and appeals regulations found at 43 CFR part 4, subparts B and L. Moreover, the amendments pertaining to civil penalties are consistent with the Federal regulations at 43 CFR 4.1157. Therefore, we are approving the changes to OAC 1513-3-19.

The former “Costs” section is rescinded. Previously, this section allowed the Commission to assess costs against a party to an appeal. The Commission does not, sua sponte, assess such costs, and the rule has not been used by the Commission. Moreover, filing fees are not required for Commission appeals. Additionally, the award of costs and expenses, following petition, are addressed fully in the following section, Awards of Costs and Expenses.

OSMRE Findings: We have determined that the provisions removed by rescission of this section are replaced by the provisions described in OAC 1513-3-21. As discussed in the OSMRE Findings for OAC 1513-3-21, we have determined that the provisions in the latter section are not inconsistent with SMCRA or regulations at 43 CFR part 4, subparts B and L. Therefore, OSMRE determines the rescission of this section does not render the Ohio program inconsistent with the Federal regulations at 43 CFR 4.1290 through 4.1296, and the rescission is approved.

This rule clarifies the previous version of this rule approved by OSMRE in 2010. See 75 FR 72947, allowing for the recovery of costs and expenses, including attorneys' fees to certain parties. The amendment clarifies that the Commission is also authorized to hear petitions for costs, including attorneys' fees and expenses, where petitions are filed by the DMRM and allege bad faith or harassment by another party. These petitions must conform to section 1513.13 of the ORC. Petitions must be filed within 60 days of receipt of the final decision of the Commission in the action in which the fees were incurred. Petitions by the DMRM must include an affidavit detailing all costs and expenses, receipts, and when attorneys' fees are requested, evidence that the hours expended and the fees requested are reasonable for the appeal and for the locality. A person served with a copy of a petition for costs and expenses must file an answer thereto within 30 days. Awards of attorney fees are appealable consistent with the ORC. This rule clarifies that parties may receive awards of costs and expenses, including attorneys' fees, expert witness fees, and fees reasonably incurred as a result of proceedings before the Commission, and specifies that fees incurred in seeking fees may also be awarded.

However, the rule at 1513-3-21(D) clarifies that Ohio's statute and regulations relevant to minerals—not including coal or peat, found within Chapter 1514 of the Revised Code, do not include an award of costs and expenses provision similar to those required in Chapter 1513. Specifically, Ohio's rule references the provision found within section 1514.09 that specifically explains that attorneys' fees, costs, and expenses may not be recovered for minerals. Chapter 1514 is not required to be consistent with SMCRA or its implementing regulations, as it does not pertain to coal regulation. Because Chapter 1514 is not part of the approved Ohio program, OSMRE is not making a determination on this portion of the Ohio rule.

OSMRE Findings: We have determined that the provisions in this section are no less effective than the Federal regulations at 43 CFR 4.1290-4.1296. Therefore, we approve the changes to OAC 1513-3-21.

This rule clarifies that parties to actions involving coal mining and reclamation brought under section 1513 of the ORC may seek review of a Commission decision in the court of appeals for the county in which the activity addressed by the decision of the Commission occurred, is occurring, or will occur. Moreover, this rule clarifies that parties to actions involving industrial minerals mining and reclamation and brought under section 1514.09, Representation on commission for appeals, of the ORC may seek review of a Commission decision in the court of common pleas in the county where the operation addressed by the decision of the Commission is located, or in the Franklin County Court of Common Pleas. However, Chapter 1514 is not required to be consistent with SMCRA or its implementing regulations, as it does not pertain to coal regulation. Because Chapter 1514 is not part of the approved Ohio program, OSMRE is not making a determination on this portion of the Ohio rule.

Additionally, the rules provide the Commission with the authority to control the transcription and transmission of the record to the appropriate appellate court.

OSMRE Findings: We have determined that the provisions in this section are consistent with Section 526 (a)(2) of SMCRA (30 U.S.C. 1276(a)(2)), and with the Federal regulations at 30 CFR 775.13(b) and 43 CFR 4.1369. Therefore, we are approving the changes to OAC 1513-3-22.

OSMRE asked for public comments in the May 20, 2014, Federal Register (79 FR 28854) (Administrative Record No. OH-2192-04). OSMRE did not receive any public comments or a request to hold a public meeting or public hearing.

Under Federal regulations at 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, OSMRE requested comments on the amendment from various Federal agencies with an actual or potential interest in the Ohio program (Administrative Record No. OH-2192-02). Specifically, OSMRE solicited comment from the Advisory Council on Historic Preservation, the United States Department of Labor, the United States Fish and Wildlife Service, the United States Environmental Protection Agency (EPA), the Ohio Historic Preservation Office, and the United States Department of Agriculture. OSMRE did not receive any response to the request for comments.

Pursuant to the Federal regulations at 30 CFR 732.17(h)(11)(ii), OSMRE is 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 Ohio proposed in the submittal pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment, and as stated above, EPA did not provide comment.

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. OSMRE requested comments on the Ohio amendment (Administrative Record Number OH-2192-02). We did not receive any comments.

Based on the above findings, we approve the amendment Ohio sent us on November 6, 2013, (Administrative Record Number OH-2192-01) with the exception of two provisions. We are not approving the sentence in section 1513-3-07(A), as explained above: “A petition for leave to intervene must be filed at least ten days prior to the beginning of an evidentiary hearing on the merits of an appeal, unless waived by the commission for extraordinary cause.” We are also not approving the deletion of 1513-3-07(D)(4), as explained above: “The effect of intervention on the agency's implementation of its statutory mandate.”

To implement this decision, we are amending the Federal regulations at 30 CFR part 935 that codify decisions concerning the Ohio 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 does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations. Other changes implemented through this final rule notice are administrative in nature and have no takings implications.

Pursuant to Office of Management and Budget (OMB) Guidance dated October 12, 1993, the approval of state program amendments is exempted from OMB review under Executive Order 12866.

The Department of the Interior has reviewed this rule as required by section 3(a) of Executive Order 12988. The Department determined that this Federal Register notice 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 notice 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 Ohio drafted.

This rule is not a “[p]olicy that [has] Federalism implications” as defined by section 1(a) of Executive Order 13132 because it does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Instead, this rule approves an amendment to the Ohio program submitted and drafted by that State. OSMRE reviewed the submission with fundamental federalism principles in mind as set forth in sections 2 and 3 of the Executive Order and with the principles of cooperative federalism set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such, pursuant to section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and (7)), OSMRE reviewed the program amendment to ensure that it is “in accordance with” the requirements of SMCRA is “consistent with” the regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, OSMRE has evaluated the potential effects of this rule on Federally recognized Indian tribes and has determined that the rule does not have substantial direct effects on one or more Indian tribes, or the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. The basis for this determination is that our decision pertains to the Ohio regulatory program and does not involve a Federal program involving Indian lands or Indian tribes in any way.

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

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions, including amendments thereto, do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). It is further documented in the DOI Departmental Manual at 516 DM 13.5 that agency decisions on approval of State regulatory programs do not constitute major Federal actions.

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

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Ohio's submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon data and assumptions for the counterpart Federal regulations.

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

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

For the reasons set out in the preamble, 30 CFR part 935 is amended as set forth below:

The owner of the bridge, New Jersey Department of Transportation, requested a temporary deviation in order to perform steel repairs at the lift span.

The Route 280 Bridge across the Passaic River, mile 5.8, at Harrison, New Jersey is a vertical lift bridge with a vertical clearance of 35 feet at mean high water and 40 feet at mean low water in the closed position. The existing drawbridge operating regulation is listed at 33 CFR 117.739(h).

This temporary deviation will allow the Route 280 Bridge to remain in the closed position from 12:01 a.m. on October 1, 2018, to 11:59 p.m. on December 14, 2018. The deviation will have minimal effect on navigation. The waterway is transited by recreational and commercial vessels. Coordination with waterway users has indicated no objection to the closure of the draw. Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will not be able to open for emergencies. There is no immediate alternate route for vessels to pass.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The owner of the bridge, the New York State Department of Transportation, requested a temporary deviation to facilitate the various structural, mechanical, and electrical rehabilitations. The spanlock platforms and machinery for both the Northbound and Southbound Bridge will be replaced in their entirety. Trunnion tower and rack gear supports repairs will be performed, and the bridge instrumentation will be replaced. The Meadowbrook State Parkway Bridge across the Sloop Channel, mile 12.8, has a vertical clearance in the closed position of 22 feet at mean high water and 25 feet at mean low water. The existing bridge operating regulations are found at 33 CFR 117.799(h).

This temporary deviation allows the Meadowbrook State Parkway Bridge to open only one bascule span at a time between 7 a.m. and 3 p.m., providing a minimum of 43 feet of available horizontal clearance, on the following days: September 28, 2018; October 1-5, 2018; November 26-30, 2018; and December 3, 2018.

Additionally, the Meadowbrook State Parkway Bridge shall remain in the closed position from 7 a.m. on October 15, 2018 through 7 a.m. on October 17, 2018 and from 7 a.m. on December 11, 2018 to 7 a.m. December 13, 2018.

The waterway is transited by commercial and recreational traffic. The Coast Guard notified known waterway users and there were no objections to this temporary deviation. Vessels able to pass under the bridge in the closed position may do so at any time. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass.

The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The owner of the bridge, Connecticut Department of Transportation, requested a temporary deviation from the normal operating schedule in order to conduct bridge maintenance and repair work. The Metro-North SAGA Railroad Bridge across the Saugatuck River, mile 1.1, at Saugatuck, Connecticut has a vertical clearance of 13 feet at mean high water in the closed position. The existing bridge operating regulations are listed at 33 CFR 117.221(b).

Under this temporary deviation, from 8 a.m. on Monday, September 17, 2018, to 8 a.m. on Monday, October 29, 2018, the Metro-North SAGA Bridge may operate as follows: From 8 a.m. Monday to 3 p.m. Friday, the draw may remain closed to marine navigation. From 3 p.m. Friday to 8 a.m. Monday, the draw shall open with 24 hours advance notice.

The waterway is transited by seasonal recreational vessels of various sizes. Vessels that can pass under the bridge in the closed position may do so at any time. The bridge will not be able to open for emergencies. The Department of Transportation has coordinated the closure with the harbormaster and has posted notice of the closure on the Connecticut Department of Transportation Construction News website. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by this temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard will enforce a 100 foot safety zone around the fireworks barge during the loading, transit, and arrival of the fireworks barge from the loading location to the display location and until the start of the fireworks display. From 11 a.m. until 5 p.m. on August 31, 2018, the fireworks barge will be loading pyrotechnics from Pier 50 in San Francisco, CA. The fireworks barge will remain at the loading location until its transit to the display location. From 8:30 p.m. to 9 p.m. on August 31, 2018 the loaded fireworks barge will transit from Pier 50 to the launch site near Pier 48 in approximate position 37°46′36″ N, 122°22′56″ W (NAD 83) where it will remain until the conclusion of the fireworks display. Upon the commencement of the 15 minute fireworks display, scheduled to begin at the conclusion of the baseball game, at approximately 10:00 p.m. on August 31, 2018, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge within a radius of 700 feet near Pier 48 in approximate position 37°46′36″ N, 122°22′56″ W (NAD 83) for the San Francisco Giants Fireworks in 33 CFR 165.1191, Table 1, Item number 1. This safety zone will be in effect from 11 a.m. on August 31, 2018 until 10:45 p.m. on August 31, 2018, or as announced via Broadcast Notice to Mariners.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

The Postal Service published a notice of proposed rulemaking on April 20, 2018, (83 FR 17518-17519) to amend the DMM to add a process, which included a fee, for removing overweight items that are found in the postal network. Items that exceed the 70 pound weight limit are nonmailable and are not provided service.

The Postal Service received 2 formal responses to the proposed rule, one of which included multiple comments.

Both responses were in agreement with enforcing the 70 pound weight restriction. However, the second responder had several comments, as follows:

Comment: The responder felt it was unclear whether the fee would be imposed on the appropriate party, specifically in regards to returns.

Response: The Postal Service is deferring implementation of the fee at this time. When the fee is implemented, the Postal Service expects that, in most instances, including returns, the fee will be requested of the sender. However, certain circumstances (e.g., when the sender is unknown) may require the fee to be requested from the receiver. Customers (sender, receiver) have the responsibility to communicate with each other to determine who is liable for the fee payment.

Comment: The second comment questioned the application of the fee and provided a hypothetical where the error was a result of an inaccurate Post Office scale.

Response: Post Office scales are calibrated daily. Customers may request a “sight” verification at the facility where the item was secured.

Comment: The third comment questioned the $100 fee and whether it could be construed as a price requiring additional approval.

Response: The fee determination will be made at a later date.

At this time, the Postal Service is implementing the process for removing items over the 70 pound maximum weight limit for Priority Mail Express®, Priority Mail®, USPS Retail Ground®, Media Mail®, Library Mail, Parcel Select®, and Parcel Return Service. Hazardous materials exceeding the applicable maximum weight limits discovered in the postal network may be subject to a civil penalty under 39 U.S.C. 3018.

Once the overweight item is identified, it will be secured and either the sender or receiver will be contacted to pick up the item within 14 calendar days. An overweight item not picked up within the 14 calendar day timeframe will be considered abandoned and disposed of at the Postal Service's discretion. Any amounts paid as purported postage and any fees would not be refundable.

The Postal Service is still determining the appropriate fee. However, because the safety of our employees is paramount, the Postal Service is moving forward immediately with implementing the process for intercepting and holding overweight items for pickup by mailers, without assessing a fee. The Postal Service will publish details regarding the fee in another Federal Register notice, once a final determination on the fee has been made.

This revision will ensure the safety of our employees while providing a superb customer experience from sender to receiver.

The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1. We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.

Accordingly, 39 CFR part 111 is amended as follows:

This document announces that, on August 1, 2018, OMB approved, the information collection requirements relating to CMS Provider election of whether to participate in WEA, and the enhanced disclosure rules contained in the Commission's WEA Second R&O, PS Docket Nos. 15-91 and 15-94, FCC 18-4. The OMB Control Number is 3060-1113. The Commission publishes this document as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room 1-A620, 445 12th Street SW, Washington, DC 20554. Please include the OMB Control Number, 3060-1113, in your communication. The Commission will also accept your comments via email at [email protected].

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on August 1, 2018, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR 10.240.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1113.

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

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

OMB Control Number: 3060-1113.

OMB Approval Date: August 1, 2018.

OMB Expiration Date: August 31, 2021.

Title: Election Whether to Participate in the Wireless Emergency Alert System.

Form Number: N/A.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 1,253 respondents; 5,012 responses.

Estimated Time per Response: 0.5-12 hours.

Frequency of Response: On occasion reporting requirement recordkeeping and third-party disclosure requirements.

Obligation to Respond: Mandatory and voluntary. The statutory authority for this information collection is contained in 47 U.S.C. 151, 154(i), 154(j), 154(o), 218, 219, 230, 256, 302(a), 303(f), 303(g), 303(r), 403, 621(b)(3), and 621(d).

Total Annual Burden: 28,820 hours.

Total Annual Cost: No Cost.

Nature and Extent of Confidentiality: An assurance of confidentiality is not offered because this information collection does not involve confidential information.

Privacy Act Impact Assessment: No impact(s).

Needs and Uses: The Warning, Alert and Response Network Act, Title VI of the Security and Accountability for Every Port Act of 2006 (120 Stat. 1884, section 602(a), codified at 47 U.S.C. 1201, et seq., 1202(a)) (WARN Act) gives the Commission authority to adopt relevant technical standards, protocols, procedures and other technical requirements governing Wireless Emergency Alert. The WARN Act also gives the Commission authority to adopt procedures by which CMS Providers disclose their intent to participate in WEA. The Commission created WEA in response to the WARN Act, and to satisfy the Commission's mandate to promote the safety of life and property using wire and radio communication. These information collections involve the WEA system, which allows CMS Providers to elect to transmit emergency alerts to the public. The information collection from CMS Providers include (1) disclosing the extent to which a CMS Provider participates in wireless alerts (“in whole” or “in part”); and (2) enhanced notification of the CMS provider's non-participation in WEA, to new subscribers at the point of sale. These disclosures will allow consumers to make more informed choices about their ability to receive WEA Alert Messages that are relevant to them.

This document announces that, on August 13, 2018, OMB approved, for a period of three years, the information collection requirements relating to new § 90.25 adopted in Order, DA 18-282, published at 83 FR 19976, May 7, 2018. The OMB Control Number is 3060-1257. The Commission publishes this document as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collection and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room 1-A620, 445 12th Street SW, Washington, DC 20554. Please include the OMB Control Number, 3060-1257, in your correspondence. The Commission will also accept your comments via email at [email protected].

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on August 13, 2018, for the information collection requirement contained in new rule 47 CFR 90.25.

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

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1257.

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

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

OMB Control Number: 3060-1257.

OMB Approval Date: August 13, 2018.

OMB Expiration Date: August 31, 2021.

Title: New Procedure for Non-Federal Public Safety Entities to License Federal Government Interoperability Channels.

Form Number: N/A.

Respondents: Not-for-profit institutions; State, local, or tribal government.

Number of Respondents and Responses: 45,947 respondents; 45,947 responses.

Estimated Time per Response: 0.25 hours.

Frequency of Response: One-time reporting requirement.

Obligation to Respond: New Section 90.25 adopted in Order DA 18-282, requires any non-federal public safety entity seeking to license mobile and portable units on the Federal Interoperability Channels to obtain written concurrence from its Statewide Interoperability Coordinator (SWIC) or a state appointed official and include such written concurrence with its application for license. A non-federal public safety entity may communicate on designated Federal Interoperability Channels for joint federal/non-federal operations, provided it first obtains a license from the Commission authorizing use of the channels. Statutory authority for these collections are contained in 47 U.S.C. 151, 154, 301, 303, and 332 of the Communications Act of 1934.

Total Annual Burden: 11,487 hours.

Total Annual Cost: No cost.

Privacy Act: No impact(s).

Nature and Extent of Confidentiality: Applicants who include written concurrence from their SWIC or state appointed official with their application to license mobile and portable units on the Federal Interoperability Channels need not include any confidential information with their application. Nonetheless, there is a need for confidentiality with respect to all applications filed with the Commission through its Universal Licensing System (ULS). Although ULS stores all information pertaining to the individual license via an FCC Registration Number (FRN), confidential information is accessible only by persons or entities that hold the password for each account, and the Commission's licensing staff. Information on private land mobile radio licensees is maintained in the Commission's system of records, FCC/WTB-1, “Wireless Services Licensing Records.” The licensee records will be publicly available and routinely used in accordance with subsection (b) of the Privacy Act. TIN Numbers and material which is afforded confidential treatment pursuant to a request made under 47 CFR 0.459 will not be available for Public inspection. Any personally identifiable information (PII) that individual applicants provide is covered by a system of records, FCC/WTB-1, “Wireless Services Licensing Records,” and these and all other records may be disclosed pursuant to the Routine Uses as stated in this system of records notice.

Needs and Uses: The purpose of requiring a non-federal public safety entity to obtain written consent from its SWIC or state appointed official before communicating with federal government agencies on the Federal Interoperability Channels is to ensure that the non-federal public safety entity operates in accordance with the rules and procedures governing use of the federal interoperability channels and does not cause inadvertent interference during emergencies. Commission staff will use the written concurrence from the SWIC or state appointed official to determine if an applicant's proposed operation on the Federal Interoperability Channels conforms to the terms of an agreement signed by the SWIC or state appointed official with a federal user with a valid assignment from the National Telecommunications and Information Administration (NTIA) which has jurisdiction over the channels.

In 2009, FRA finalized amendments to the HS recordkeeping regulations at 49 CFR part 228 (part 228) to authorize electronic recordkeeping and reporting as a means of compliance with the Federal HS laws. In addition to certification requirements, see 49 CFR 228.9(b), these amendments added new subpart D to part 228, which established comprehensive requirements for electronic recordkeeping systems. Some smaller railroads informed FRA that the requirements of part 228, subpart D make electronic recordkeeping systems infeasible for their operations, which are less complex and variable than larger railroads' operations. Some small railroads already use an automated system for covered service employees to enter required HS data, which the employees then print and sign as a paper HS record. This rule allows a railroad with less than 400,000 employee-hours annually (an “eligible smaller railroad”), and contractors and subcontractors that provide covered service employees to that railroad, to have employees electronically sign the automated records of their hours of duty and to store the records in the railroad's computer system. Thus, this rule eliminates the requirement to print and sign the record.

This rule amends part 228, subpart D by defining an “automated recordkeeping system” for eligible smaller railroads under new § 228.201(b) and outlining the requirements of such a system under new § 228.206, while retaining the definition of an “electronic recordkeeping system” as § 228.201(a) and the existing requirements under §§ 228.203-228.205. The rule also provides general requirements for automated records, such as electronic signatures, retention periods, and FRA access, under new § 228.9(c), and it modifies training requirements under § 228.207.

This rule allows an eligible smaller railroad to adopt an automated recordkeeping system without conforming to all the requirements for an electronic recordkeeping system. For example, new § 228.206 does not require an automated recordkeeping system to include some of the program components and other features that are not appropriate or necessary for the operations of eligible smaller railroads, although those features are important for an electronic recordkeeping system in light of the more complex operations of larger railroads. New § 228.206 includes requirements for FRA and participating State inspector access to and ability to search an automated recordkeeping system to effectively monitor compliance with the HS laws and regulations, similar to the search capabilities and access requirements for electronic recordkeeping systems.

This rule significantly reduces costs and paperwork burdens for eligible smaller railroads because automated records require less time to complete than manual records and the records may be stored digitally, relieving eligible smaller railroads of the burden of storing and maintaining paper records. The costs of implementing an automated recordkeeping system are projected as substantially less than an electronic recordkeeping system and are relatively small compared to the benefits gained by eliminating a paper recordkeeping system. Adopting an automated recordkeeping system is purely voluntary, but FRA expects many eligible smaller railroads currently using manual records to begin creating and maintaining HS records using an automated system, with a projected reduction of over 194,000 burden hours. FRA's economic analysis projects an estimated $87.6 million in net savings over a 10-year period as a result of this rule, and the present value of this savings is $55.1 million (discounted at 7 percent). The final rule is expected to have no negative impact on safety, as it simply provides a voluntary option for eligible smaller railroads and their contractors and subcontractors to use an alternative means of compliance with recordkeeping obligations.

Federal laws governing railroad employees' hours of service date back to 1907 1 and are presently codified at 49 U.S.C. 21101-21109,2 21303, and 21304.3 FRA, under 49 U.S.C. 103(g), 49 CFR 1.89, and internal delegations, has long administered the statutory HS requirements and the agency's HS recordkeeping and reporting regulations (49 CFR part 228, subpart B), which promote compliance with the HS laws. Currently, the HS statutory requirements cover three groups of employees: train employees, signal employees, and dispatching service employees, as those terms are defined at Sec. 21101. The HS recordkeeping and reporting regulations at 49 CFR 228.5 include the statutory definitions of these terms and FRA interpretations discuss them. See FRA's “Requirements of the Hours of Service Act; Statement of Agency Policy and Interpretation” at 49 CFR part 228, appendix A, most of which was issued in the 1970s, and subsequent FRA interpretations of the HS laws published in the Federal Register.

Congress has amended the HS statutory requirements several times over the years, most recently in the Rail Safety Improvement Act of 2008 (RSIA).4 The RSIA substantially amended the requirements of Secs. 21103 and 21104, applicable to a “train employee” 5 and a “signal employee,” 6 respectively, and added new provisions at Secs. 21102(c) and 21109 that together made a train employee providing rail passenger transportation subject to HS regulations, not Sec. 21103, if the Secretary timely issued regulations. Subsequently, FRA, as the Secretary's delegate, timely issued those regulations, codified at 49 CFR part 228, subpart F (Passenger Train Employee HS Regulations), which became effective October 15, 2011.

Additionally, section 108(f)(1) of the RSIA required the Secretary to prescribe a regulation revising the requirements for recordkeeping and reporting for hours of service of railroad employees, specifically to authorize electronic record keeping and reporting of excess service and to require training of affected employees and supervisors, including training of employees in the entry of hours of service data. FRA, as the Secretary's delegate, also issued those regulations, codified at 49 CFR part 228, including subpart D (Electronic Recordkeeping), which became effective July 16, 2009. 74 FR 25330, May 27, 2009 (2009 Recordkeeping Amendments).7

In general, the 2009 Recordkeeping Amendments required that either employees recording their own time, or the reporting crewmember of a train crew or signal gang who was recording time, certify their electronic HS records, instead of signing them by hand, and that the recordkeeping system electronically stamp the records with the name of the certifying employee and the date and time of certification. See 49 CFR 228.9(b). These amendments also established comprehensive requirements for electronic recordkeeping systems. A brief summary of the most significant requirements follows.

• First, electronic recordkeeping systems must generate records that provide sufficient data fields for an employee to report a wide variety and number of activities that could arise during a duty tour. See 49 CFR 228.201.

• Second, the systems must have security features to control access to HS records and to identify any individual who entered information on a record. See 49 CFR 228.203(a)(1)(i), (a)(2)-(a)(7), and (b).

• Third, systems must include program logic that identifies how periods of time spent in any activity that is entered on a record are treated under the HS laws (and the substantive HS regulations for passenger train employees).

• Fourth, program logic must allow the systems to calculate total time on duty from the data the employee entered, flag employee-input errors so the employee can correct them before certifying the record, and require the employee to enter an explanation when the data entered shows a violation of the HS laws or regulations. See 49 CFR 228.203(c).

• Fifth, electronic recordkeeping systems must provide a method known as a “quick tie-up” for employees to enter limited HS information when they have met or exceeded the maximum hours allowed for the duty tour, and railroads must have procedures for employees to do a quick tie-up by telephone or facsimile (fax) if computer access is not available. See 49 CFR 228.5 and 228.203(a)(1)(ii).

• Finally, an electronic recordkeeping system must provide search capability so records may be searched by date or date range and by employee name or identification number, train or job assignment, origin or release location, territory, and by records showing excess service. The results of any such search must yield all records matching specified criteria. See 49 CFR 228.203(d).

The final rule applies only to eligible smaller railroads 8 , as well as contractors and subcontractors to such eligible smaller railroads. FRA is aware that some railroads have been using an automated system in which covered service employees access a blank HS record on a railroad computer, enter required data on the form, and then print and sign the record. The printed record is still considered a manual or paper record, with the associated burden of storage placed on the railroad. FRA expects many eligible smaller railroads will choose to comply with this rule using existing equipment and software already in use. For example, many eligible smaller railroads will find their existing equipment and software can generate forms that will allow employees to enter the information relevant to their duty tours as required by § 228.11 and save those records in a directory structure that would allow either the railroad or FRA to retrieve them using the search criteria provided in this rule.

Contractors and subcontractors to eligible smaller railroads are also eligible to use automated recordkeeping systems for their employees working on eligible smaller railroads, but not for their employees working on ineligible railroads. For instance, a contractor or subcontractor that performs covered service for both eligible smaller railroads and Class I railroads is not eligible to use an automated recordkeeping system for the hours of service records of its employees working for Class I railroads. If a contractor or subcontractor small enough to be eligible to use an automated recordkeeping system under this rule performs service for eligible and ineligible railroads and seeks to use an automated recordkeeping system, such a contractor or subcontractor may pursue relief through the waiver process, under 49 CFR 211.41.

It is appropriate to allow the eligible smaller railroads to use an automated recordkeeping system that lacks the programming and analysis capabilities required of an electronic recordkeeping system because of the less complex and less varied nature of the operations of eligible smaller railroads. For example, this rule does not require an automated system to calculate and fill in total time on duty based on the information an employee enters because that would require costly programming to enable the system to identify how various periods of time are treated. Instead, an employee will enter that information just as if the automated record were a paper record. Similarly, the rule does not require an automated system to include costly programming that would prompt the employee to enter an explanation of a duty tour over 12 hours or that would flag possible input errors or missing data (for example, showing an on-duty location that differs from the released location of the previous duty tour).

Approximately 746 railroads, 18 commuter railroads, and their contractors and subcontractors, are eligible to use automated recordkeeping systems pursuant to this rule. FRA declines to extend this rule to railroads with 400,000 or more employee-hours annually because the number of employees, volume of HS records, and complexity of operations associated with larger railroads requires a more sophisticated electronic recordkeeping system that complies with part 228, subpart D if those operations want to use an alternative to manual records.9 A larger and more complex operation benefits from an electronic recordkeeping system's program logic that helps to ensure accurate recordkeeping, and search capabilities that help to better identify relevant records for the railroad's own review and in response to FRA requests.

Among commuter railroads, for example, Metro-North Commuter Railroad is currently using an electronic recordkeeping system, and New Jersey Transit Railroad is developing an electronic recordkeeping system. FRA understands that these railroads are willing to share some information with other commuter railroads that are ineligible for automated recordkeeping systems to help them develop electronic recordkeeping systems compliant with part 228, subpart D. By developing these partnerships, larger commuter railroads will have a cost-effective opportunity to eliminate paper records and adopt electronic recordkeeping systems even if they do not qualify for automated recordkeeping under this rule. For these reasons, FRA adopts this rule applicable only to eligible smaller railroads.

FRA received two public comments on the automated recordkeeping NPRM. The American Short Line and Regional Railroad Association filed a short comment October 23, 2015, indicating the NPRM accurately assessed the ability of small railroads to capture HS data and expressing eagerness to see a final rule in effect. FRA also received an anonymous comment October 22, 2015, indicating only that the NPRM was, “Good.” FRA received no public comments conveying a need to change the scope or substance of the proposed rule.

FRA adds definitions of “automated recordkeeping system”; “electronic recordkeeping system”; “electronic signature”; and “eligible smaller railroad.”

The definitions of “automated recordkeeping system” and “electronic recordkeeping system” distinguish the automated systems subject to this rulemaking, which are required to conform to the requirements of new §§ 228.201(b) and 228.206, from the electronic recordkeeping systems that must meet the pre-existing requirements of §§ 228.201(a) and 228.203-228.205.

The definition of “electronic signature” is consistent with the Electronic Signatures in Global and National Commerce Act.10 It allows railroads the choice of using two different types of electronic signatures for their employees to sign their HS records: Either (1) a unique digital signature, created based on the employee's identification number and password, or other means used to uniquely identify the employee in the automated recordkeeping system; or (2) a unique digitized version of the employee's handwritten signature that would be applied to the HS record.11 The definition also provides the electronic signature must be created as provided in § 228.19(g) (existing regulatory requirements for creating an electronic signature for railroads' use on their reports of excess service) or § 228.206(a) (new requirements for creating electronic signatures for use on employees' HS records in an automated recordkeeping system).

This rule defines an “eligible smaller railroad”, in general, as a railroad with less than 400,000 employee hours annually, which is eligible to use an automated recordkeeping system under this rule. More specifically, an eligible smaller railroad is defined as a railroad that has reported to FRA it had less than 400,000 employee hours during the preceding three consecutive calendar years on Form FRA 6180.55—Annual Railroad Reports of Manhours by State, as required by 49 CFR 225.21(d). As an exception to the general rule, railroads that have not been operating for three prior consecutive calendar years and expect to have less than 400,000 employee hours annually during the current year may use an automated recordkeeping system. This final rule combines the substantive content of the proposed definitions of “eligible smaller railroad” and “railroad that has less than 400,000 employee hours annually” into the final definition of “eligible smaller railroad.”

New § 228.9(c) establishes requirements for automated records that parallel the requirements of paragraph (a) for manual records and paragraph (b) for electronic records. Paragraph (c) requires that automated records be electronically signed and stamped with the certifying employee's electronic signature that meets the requirements of § 228.206(a) and the date and time that the employee electronically signed the record. As in paragraphs (a) and (b), paragraph (c) contains requirements for retaining and accessing the records. Unlike paragraph (b) applicable to electronic records, paragraph (c) does not require using an employee identification (ID) and password to access automated records.12 While some eligible smaller railroads might choose to provide an ID and password for the purpose of accessing an automated system, FRA concludes mandating an ID and password would be more complex than necessary for smaller operations, which may choose, for example, to have a railroad official directly provide access.13 Finally, paragraph (c) requires automated records be capable of being reproduced on printers available at the location where records are accessed, meaning railroads must have printers available at any location where they provide access to records. This requirement also applies to electronic recordkeeping systems under § 228.9(b).

Section 228.11(a) requires each railroad, or a contractor or a subcontractor that provides covered service employees to a railroad, to “keep a record, either manually or electronically, concerning the hours of duty of each employee.” Because HS records created and maintained using an automated recordkeeping system will also be required to comply with the requirements of § 228.11 (see section-by-section analysis of § 228.201(b) below), this rule removes the words “either manually or electronically” from the requirement.

FRA retains the pre-existing requirements of this section for electronic recordkeeping systems as paragraph (a) and adopts new paragraph (b) with similar but simplified requirements for automated recordkeeping systems, in part by cross-referencing those requirements of paragraph (a) also applicable to automated recordkeeping systems. The rule makes minor non-substantive changes to paragraphs (a)(3), (a)(4), and (a)(5) to correct typographical errors, specifically by deleting the “and” after paragraph (a)(3), replacing the periods at the end of paragraphs (a)(4) and (a)(5) with semicolons, and adding “and” after the semicolon at the end of paragraph (a)(5). New § 228.201(b)(1) requires an automated recordkeeping system to comply with new § 228.206. New § 228.201(b)(2) requires eligible smaller railroads using automated recordkeeping systems to comply with the requirements of paragraphs (a)(2) and (a)(4)-(a)(6), requirements also applicable to electronic records and recordkeeping systems. The main difference between the requirements of new § 228.201(b)(2) for automated records and recordkeeping systems and the corresponding existing requirements for electronic records and recordkeeping systems is that automated systems are not required to have monitoring indicators in the system to help the railroad monitor the accuracy of the records. Eligible smaller railroads, however, remain responsible for the accuracy of their required HS records, regardless of whether the record is manual, automated, or electronic.

Finally, under new § 228.201(c), if a railroad, or a contractor or subcontractor to a railroad with an automated recordkeeping system, ceases to qualify as an “eligible smaller railroad” based on the new definition in § 228.5, that railroad, or contractor or subcontractor to a railroad, may not use an automated recordkeeping system unless FRA grants a waiver under 49 CFR 211.41. As described above, FRA believes larger railroads are better served by the use of an electronic recordkeeping system. In most cases, a railroad with such growth for three consecutive calendar years will have had sufficient time and funding to transition to an electronic recordkeeping system.

New § 228.206 establishes the requirements for an automated recordkeeping system, some of which are similar to the requirements for electronic recordkeeping systems found in §§ 228.203 and 228.205. As discussed in Section III above, however, § 228.206 is tailored to the nature and lesser complexity of the operations of eligible smaller railroads. Therefore, the rule does not require an automated system to include some of the program components and other features that apply to electronic recordkeeping systems. These elements are not appropriate or necessary for the operations of eligible smaller railroads; however, the rule requires other elements for the automated systems not used in an electronic recordkeeping system.

Paragraph (a) mandates an employee creating an automated record must sign the record and establishes the requirements for an electronic signature. These requirements largely track paragraph (g) of § 228.19, which explains the requirements for railroads to establish and use electronic signatures for filing reports of excess service. These requirements are unique to automated recordkeeping systems and do not apply to electronic recordkeeping systems.

Paragraph (b) provides standards for system security of automated recordkeeping systems. Eligible smaller railroads must control access to the automated recordkeeping system using a user name and password or comparable method. Paragraph (b)(1) restricts data entry to the employee, train crew, or signal gang whose time is being reported, although a railroad may pre-populate some of the known factual data on its employees' HS records. An employee's name or identification number, or the on-duty time for an employee who works a regular schedule, are examples of the kind of data that the automated system can pre-populate; however, the regulation requires that the employee may make changes to any pre-populated data at all times without requiring permission or authorization from any third party, such as, but not limited to, a railroad manager.

Paragraph (b)(2) requires no two individuals have the same electronic signature, and paragraph (b)(3) requires the system not permit the deletion or alteration of an electronically-signed automated record. Paragraphs (b)(4) and (b)(5) together require that any amendment to a record must (1) be stored digitally apart from the record it amends or attached as information without altering the record and (2) identify the person making the amendment. Finally, paragraphs (b)(6) and (b)(7) require the automated recordkeeping systems maintain records as submitted without corruption or loss of data and ensure supervisors and crew management officials can access, but not delete or alter, an automated record after an employee electronically signs the record. The proposed rule did not establish a specific interval for railroads to back-up the data contained in their automated recordkeeping system. FRA requested comments on the appropriate interval and method of data back-up, but did not receive any comments on this issue. To guarantee sufficient data redundancy to prevent substantial loss of HS records, paragraph (b)(6) now requires back-up of automated recordkeeping systems at least quarterly.

Paragraph (c) requires the automated recordkeeping system to identify each individual who enters data on a record and which data items each individual entered if more than one person entered data on a given record.

Paragraph (d) establishes the required search capabilities for an automated recordkeeping system. Though the rule provides specific data fields and other criteria the system must be able to use to search for and retrieve responsive records, the requirements are notably less complex than those for an electronic recordkeeping system.

Paragraph (e) establishes the requirements for access to automated recordkeeping systems. Eligible smaller railroads must grant FRA inspectors, and participating State inspectors, access to the system using railroad computer terminals as soon as possible, and no later than 24 hours after a request for access. The access must make visible each data field an employee completed, and data fields must be searchable as described in paragraph (d).

This rule revises the training requirements of part 228. Specifically, paragraph (b) of this section, which sets forth the components of initial training, will now require training on how to enter HS data into an automated system. The paragraph currently requires training of employees on the electronic recordkeeping system or the appropriate paper records used by the railroad, contractor, or subcontractor for whom the employees perform covered service. Paragraph (b) will now include a similar training requirement for eligible smaller railroads that develop an automated recordkeeping system in compliance with this rule.

Similarly, this rule revises paragraph (c) of this section to specifically require eligible smaller railroads with automated systems to provide refresher training emphasizing any changes in HS substantive requirements, HS recordkeeping requirements, or a railroad's HS recordkeeping system since the employee was last provided training. FRA expects any railroad implementing an automated recordkeeping system to replace previously-used paper records would need to provide training on the use of that system to its employees, even if those employees had previously received training for paper records as required by this section.

This final rule has been evaluated in accordance with existing policies and procedures under Executive Order 12866, Executive Order 13563, Executive Order 13771, and DOT policies and procedures. 44 FR 11034, Feb. 26, 1979; 76 FR 3821, Jan. 21, 2011; 82 FR 9339, Jan. 30, 2017. OMB designated this rule nonsignificant. FRA prepared and placed in the docket a Regulatory Evaluation addressing the economic impacts of this rule.

FRA will now allow eligible smaller railroads, and their contractors and subcontractors, to use automated recordkeeping systems, a simpler alternative to electronic recordkeeping systems that are infeasible for them, because their operations are less complex and variable than the operations of larger railroads. Both electronic and automated records require substantially less time to complete and cost less to store than manual records. Under this rule, eligible smaller railroads can take advantage of paper-saving technology to create and maintain hours of duty records as required by 49 CFR part 228, subpart B without complying with the more-stringent requirements for electronic recordkeeping systems under 49 CFR part 228, subpart D that may not be relevant to their operations. As part of its regulatory evaluation, FRA explained the benefits/cost savings of automated records and recordkeeping systems under this rule and provided a monetized value. The rule substantially reduces costs compared to current paper recordkeeping systems by allowing eligible smaller railroads to use automated recordkeeping systems. FRA believes the majority of eligible smaller railroads will take advantage of the opportunity for cost savings and incur a small burden to realize projected significant net cost savings. The final rule also follows the direction of Executive Order 13563, which emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

Finally, this final rule is considered an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis.

FRA estimates this regulation will result in a total estimated reduction of just over 194,000 burden hours annually. Based on railroads' annual 6180.55 reports to FRA for 2016, this rule will apply to a total of approximately 764 railroads with less than 400,000 employee-hours annually. These 764 railroads include the eligible employees of 746 probable small freight railroads and 18 small commuter railroads, as well as their contractors and subcontractors. FRA estimates 615 of these entities will adopt an automated recordkeeping system: 80 percent of the 746 small railroads and all 18 of the small commuter railroads.

The economic analysis 14 provides a quantitative evaluation of the costs, cost savings, and benefits of the rule. The cost savings equals the reduced time an employee spends entering hours of duty in an automated system compared to the time they currently spend to manually produce a paper record of hours on duty. FRA calculated a reduction of 8 minutes per record.

FRA estimated the net cost savings expected from this final rule. In particular, over a 10-year period, $87.6 million in net savings could accrue through the adoption of automated recordkeeping systems. The present value of this savings is $55.1 million (discounted at 7 percent). FRA concludes the eligible small railroads would benefit significantly from adoption of the final rule.

Railroads are already producing HS records manually on paper records to comply with 49 CFR 228.11, and adopting an automated recordkeeping system is voluntary. FRA expects a relatively small implementation investment cost for railroads electing to use the automated system to realize the significant benefits (cost burden reduction). Costs are primarily labor driven along with the potential purchase of hardware 15 and software. 16 FRA estimates that if each of these railroads were to expend $5,590 discounted at 7 percent over a 10-year period to set up and operate an automated recordkeeping system for HS records, the railroads would reduce their paperwork burden by $95,174 discounted at 7 percent over that same period.

Therefore, this final rule would have a positive effect on these railroads, saving each railroad approximately a net $89,584 in costs at discounted 7 percent over the 10-year analysis. The table below presents the estimated net cost savings associated with the final rule, over the 10-year analysis.

Both the Regulatory Flexibility Act (RFA), Public Law 96-354, as amended, and codified as amended at 5 U.S.C. 601-612, and Executive Order 13272—Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461, Aug. 16, 2002, require agency review of proposed and final rules to assess their impact on “small entities” for purposes of the RFA. An agency must prepare a regulatory flexibility analysis unless it determines and certifies a final rule is not expected to have a significant impact on a substantial number of small entities. Pursuant to the RFA, 5 U.S.C. 605(b), the Administrator of FRA certifies this final rule will not have a significant economic impact on a substantial number of small entities. Although this final rule could affect many small railroads, they may voluntarily adopt the requirements. Moreover, the effect on those railroads that do voluntarily adopt the requirements is primarily beneficial and not significant because it will reduce their labor burden for hours of service recordkeeping and reporting.

The term “small entity” is defined in 5 U.S.C. 601 (Section 601). Section 601(6) defines “small entity” as having the same meaning as “the terms `small business', `small organization' and `small governmental jurisdiction' defined in paragraphs (3), (4), and (5) of this section.” In turn, Section 601(3) defines a “small business” as generally having the same meaning as “small business concern” under Section 3 of the Small Business Act, and includes any a small business concern that is independently owned and operated, and is not dominant in its field of operation. Next, Sec. 601(4) defines “small organization” as generally meaning any not-for-profit enterprises that is independently owned and operated, and not dominant in its field of operations. Additionally, Sec. 601(5) defines “small governmental jurisdiction” in general to include governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.

The U.S. Small Business Administration (SBA) stipulates “size standards” for small entities. It provides that, in order to qualify for “small entity” status, a for-profit railroad business firm may have a maximum of 1,500 employees for “Line-Haul Operating” railroads and 500 employees for “Short-Line Operating” railroads. See “Size Eligibility Provisions and Standards,” 13 CFR part 121, subpart A.

Under exceptions in Section 601, Federal agencies may adopt their own size standards for small entities in consultation with SBA, and in conjunction with public comment. Under that authority, FRA published a “Final Policy Statement Concerning Small Entities Subject to the Railroad Safety Laws” (Policy) which formally establishes that small entities include among others, the following: (1) Railroads that Surface Transportation Board (STB) regulations classify as Class III and (2) commuter railroads “that serve populations of 50,000 or less.” 17 See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part 209. Currently, railroads eligible for small entity status under the Policy also must have $20 million or less in annual operating revenue, adjusted annually for inflation. The $20 million limit (adjusted annually for inflation) is based on the STB's threshold for a Class III railroad, which is adjusted by applying the railroad revenue deflator adjustment. For further information on the calculation of the specific dollar limit, see 49 CFR part 1201. FRA uses this definition of “small entity” for this final rule.

FRA amends its hours of service recordkeeping regulations to provide simplified recordkeeping requirements by allowing eligible smaller railroads, and their contractors and subcontractors, to utilize an automated system to create and maintain hours of duty records as required by 49 CFR 228.11. As stated above, FRA reports indicate there are 742 Class III railroads that are eligible to use the simplified automated recordkeeping system this final rule provides. However, if they are affected, it is voluntary because this final rule does not require any railroad to develop and use an automated recordkeeping system. As stated above, there are also 18 commuter railroads, each of which is run by a State, County, or Municipal Agency, eligible under this final rule to develop and use an automated recordkeeping system, but all serve populations of 50,000 or more and are not designated as small businesses.18

FRA estimates 80 percent of small railroads and all small commuter railroads to convert to automated recordkeeping. For the purposes of this analysis, the 615 railroads FRA estimates are affected by this final rule are assumed to be small railroads. However, as discussed above, the economic impact on these small railroads is not significant. This final rule does not affect any other small entities other than these small railroads. As stated above in Section VI.A., although FRA estimates each of these railroads will expend $5,590, this final rule will have a positive net economic effect on these railroads, saving each railroad approximately $89,584 in costs at discounted 7 percent over the 10-year period analyzed. Since this amount is relatively small and beneficial, FRA concludes this final rule does not have a significant impact on these railroads.

To determine the significance of the economic impact for this RFA, during the NPRM process, FRA invited comments from all interested parties concerning the potential economic impact of this rulemaking on small entities. However, FRA did not receive any comments related to small entities.

FRA expects the final rule will reduce the paperwork burden for smaller railroads. Therefore, this RFA concludes this final rule will not cause an economic impact on any small entities.

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601(b), the FRA Administrator hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities. FRA continues to invite comments from members of the public who foresee a significant impact.

Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The executive order defines “policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.

FRA analyzed this final rule consistent with the principles and criteria contained in Executive Order 13132. FRA determined the final rule will not have substantial direct effects on States, on the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. In addition, FRA determined this final rule will not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This final rule amends FRA's HS reporting and recordkeeping regulations to allow a railroad with less than 400,000 employee hours annually, and a contractor or subcontractor providing covered service employees to such a railroad, to create and maintain HS records for its covered service employees using an automated recordkeeping system. FRA is not aware of any State with regulations covering the subject of this final rule. However, FRA notes this rule could have preemptive effect under Section 20106 of the former Federal Railroad Safety Act of 1970, that Congress repealed, reenacted without substantive change, codified at 49 U.S.C. 20106, and later amended (Section 20106). Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters), unless the State law, regulation, or order (1) qualifies under the “essentially local safety or security hazard” exception to Section 20106, (2) is not incompatible with a law, regulation, or order of the U.S. Government, and (3) does not unreasonably burden interstate commerce.

In sum, FRA analyzed this final rule consistent with the principles and criteria contained in Executive Order 13132. As explained above, FRA determined this final rule has no federalism implications other than possible preemption of State laws under 49 U.S.C. 20106 and 21109 (providing regulatory authority for hours of service). Accordingly, FRA determined it is not required to prepare a federalism summary impact statement for this final rule.

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards, and, where appropriate, that they be the basis for U.S. standards. This rulemaking is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.

The information collection requirements in this final rule are being submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The sections that contain the new and current information collection requirements are duly designated, and the estimated time to fulfill each requirement is as follows:

All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: Whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Collection Clearance Officer, Office of Railroad Safety, at 202-493-6292, or Ms. Kim Toone, Information Collection Clearance Officer, Office of Railroad Administration, at 202-493-6132, or via email at the following addresses: [email protected]; [email protected].

Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be sent via email to the Office of Management and Budget at the following address: [email protected].

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

FRA cannot impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of this final rule. The OMB control number assigned to the collection of information associated with the current rule is OMB No. 2130-0005.

FRA evaluated this final rule consistent with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA determined this final rule is not a major FRA action requiring the preparation of an environmental impact statement or environmental assessment because it is categorically excluded from detailed environmental review under section 4(c)(20) of FRA's Procedures.See 64 FR 28547, May 26, 1999. Section 4(c)(20) states certain classes of FRA actions have been determined to be categorically excluded from the requirements of FRA's Procedures as they do not individually or cumulatively have a significant effect on the human environment, including the promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions of air or water pollutants or noise or increased traffic congestion in any mode of transportation.

FRA further concluded no extraordinary circumstances exist with respect to this final regulation that might trigger the need for a more detailed environmental review under sections 4(c) and (e) of FRA's Procedures. As a result, FRA finds that this final rule is not a major Federal action significantly affecting the quality of the human environment.

Under section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires written statements from agencies before promulgating any general notice of proposed rulemaking that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year and before promulgating any final rule for which a general notice of proposed rulemaking was published. The written statement, if required, would detail the effect on State, local, and tribal governments and the private sector.

For the year 2015, FRA adjusted the monetary amount of $100,000,000 to $156,000,000 for inflation. This final rule would not result in the expenditure of more than $156,000,000 by the public sector in any one year, and thus preparation of such a statement is not required.

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

For the reasons discussed in the preamble, FRA amends part 228 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows:

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The annual allowance of the 2018 Pacific cod total allowable catch (TAC) apportioned to trawl catcher vessels in the Central Regulatory Area of the GOA not participating in the cooperative fishery of the Rockfish Program is 2,275 metric tons (mt), as established by the final 2018 and 2019 harvest specifications for groundfish of the GOA (83 FR 8768, March 1, 2018).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the annual allowance of the 2018 Pacific cod TAC apportioned to trawl catcher vessels in the Central Regulatory Area of the GOA is necessary to account for the incidental catch in other anticipated fisheries. Therefore, the Regional Administrator is establishing a directed fishing allowance of 0 mt and is setting aside the remaining 2,275 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Central Regulatory Area of the GOA. While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip. This closure does not apply to fishing by vessels participating in the cooperative fishery of the Rockfish Program for the Central GOA.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by catcher vessels using trawl gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 22, 2018.

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

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