Federal Register Vol. 80, No.164,

I. Obtaining Information and Submitting Comments A. Obtaining Information

Please refer to Docket ID NRC-2014-0044 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2014-0044.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected]. The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in the SUPPLEMENTARY INFORMATION section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Please include Docket ID NRC-2014-0044 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

On May 4, 2015, the NRC published an ANPR (80 FR 25237) for public comment to obtain input on the development of a regulatory basis. The regulatory basis would support potential amendments to those regulations in appendix I of part 50 of Title 10 of the Code of Federal Regulations (10 CFR), which concern how NRC licensees demonstrate meeting the “as low as is reasonably achievable” standard with respect to effluents from nuclear power plants. The purpose of the potential amendments would be to more closely align the 10 CFR part 50, appendix I, regulations with the terminology and dose-related methodology published in ICRP Publication 103 (2007).

The ANPR identified specific questions and issues with respect to a possible revision of the NRC's regulations at 10 CFR part 50, appendix I, and associated guidance. Comments from members of the public and other stakeholders, including responses to the specific questions, will be considered by the NRC staff when it develops the regulatory basis. The public comment period was originally scheduled to close on September 1, 2015. The NRC received a request (ADAMS Accession No. ML15217A373) to extend the public comment period on the ANPR and is approving a one-time, 30-day extension, until October 1, 2015, to provide additional time for members of the public and other stakeholders to develop and submit their comments.

The U.S. Department of Energy (DOE) published a proposed determination that commercial and industrial fans and blowers (fans) meet the definition of covered equipment under the Energy Policy and Conservation Act of 1975, as amended (76 FR 37628, June 28, 2011). As part of its further consideration of this determination, DOE has initiated a rulemaking to establish energy conservation standards for commercial and industrial fans and blowers. To date, DOE has published a notice of public meeting and availability of the framework document to consider such standards (78 FR 7306 (Feb. 1, 2013)), and two Availabilities of Provisional Analysis Tools and Notices of Data Availability (NODAs) (79 FR 73246 (Dec. 10, 2014), and 80 FR 24841 (May 1, 2015)). The second NODA provided for the submission of public comments through Fans and Blowers Working Group meetings established by the Appliance Standards Regulatory Advisory Committee (ASRAC), which concludes on September 8, 2015.

In addition to issuing these publications, DOE has participated in and provided support to the Fans and Blowers Working Group. In particular, the second NODA was published to inform the proceedings of the Working Group and serve as a starting point for its work. The proceedings of the Working Group, including revised analysis largely supersede the content of the May 2015 NODA. DOE encouraged stakeholders to provide any additional data or information and to submit comments on the content and analysis developed during the ASRAC Working Group process. Supporting material presented during the Working Group meetings and transcripts, as well as supporting documents including industry publications are available in the Fans and Blowers rulemaking docket at: http://www.regulations.gov/#!docketDetail;D=EERE-2013-BT-STD-0006.

Given that the Fans and Blowers Working Group meetings will conclude by September 8, 2015, DOE believes that closing the comment period on September 8, 2015 will allow sufficient time for interested parties to submit comments. Accordingly, DOE will consider any comments received by September 8, 2015 to be timely submitted.

DOE is announcing its intent to negotiate proposed energy conservation standards and establish a test procedure that would apply to dedicated purpose pool pumps, under the authority of sections 563 and 564 of the NRA (5 U.S.C. 561-570, Pub. L. 104-320). These efforts to establish standards and a test procedure for dedicated purpose pool pumps through a negotiated rulemaking will be developed under the authority of EPCA, as amended, 42 U.S.C. 6311(1) and 42 U.S.C. 6291 et seq.

As required by the NRA, DOE is giving notice that it is establishing a working group under ASRAC to discuss certain aspects related to testing and the potential development of proposed energy conservation standards for dedicated purpose pool pumps.

DOE has decided to use the negotiated rulemaking process to discuss certain test procedure amendments and develop proposed energy conservation standards for dedicated purpose pool pumps. The primary reason for using the negotiated rulemaking process for this product is that stakeholders strongly support a consensual rulemaking effort. DOE believes such a regulatory negotiation process will be less adversarial and better suited to resolving complex technical issues. An important virtue of negotiated rulemaking is that it allows expert dialog that is much better than traditional techniques at getting the facts and issues right and will result in a proposed rule that will effectively reflect Congressional intent.

A regulatory negotiation will enable DOE to engage in direct and sustained dialog with informed, interested, and affected parties when drafting the regulation, rather than obtaining input during a public comment period after developing and publishing a proposed rule. Gaining this early understanding of all parties' perspectives allows DOE to address key issues at an earlier stage of the process, thereby allowing more time for an iterative process to resolve issues. A rule drafted by negotiation with informed and affected parties is expected to be potentially more pragmatic and more easily implemented than a rule arising from the traditional process. Such rulemaking improvement is likely to provide the public with the full benefits of the rule while minimizing the potential negative impact of a proposed regulation conceived or drafted without the full prior input of outside knowledgeable parties. Because a negotiating working group includes representatives from the major stakeholder groups affected by or interested in the rule, the number of public comments on the proposed rule may be decreased. DOE anticipates that there will be a need for fewer substantive changes to a proposed rule developed under a regulatory negotiation process prior to the publication of a final rule.

Usually, DOE develops a proposed rulemaking using Department staff and consultant resources. Congress noted in the NRA, however, that regulatory development may “discourage the affected parties from meeting and communicating with each other, and may cause parties with different interests to assume conflicting and antagonistic positions * * *.” 5 U.S.C. 561(2)(2). Congress also stated that “adversarial rulemaking deprives the affected parties and the public of the benefits of face-to-face negotiations and cooperation in developing and reaching agreement on a rule. It also deprives them of the benefits of shared information, knowledge, expertise, and technical abilities possessed by the affected parties.” 5 U.S.C. 561(2)(3).

Using negotiated rulemaking to develop a proposed rule differs fundamentally from the Department-centered process. In negotiated rulemaking, a proposed rule is developed by an advisory committee or working group, chartered under FACA, 5 U.S.C. App. 2, composed of members chosen to represent the various interests that will be significantly affected by the rule. The goal of the advisory committee or working group is to reach consensus on the treatment of the major issues involved with the rule. The process starts with the Department's careful identification of all interests potentially affected by the rulemaking under consideration. To help with this identification, the Department publishes a notice of intent such as this one in the Federal Register, identifying a preliminary list of interested parties and requesting public comment on that list. Following receipt of comments, the Department establishes an advisory committee or working group representing the full range of stakeholders to negotiate a consensus on the terms of a proposed rule. Representation on the advisory committee or working group may be direct; that is, each member may represent a specific interest, or may be indirect, such as through trade associations and/or similarly-situated parties with common interests. The Department is a member of the advisory committee or working group and represents the Federal government's interests. The advisory committee or working group chair is assisted by a neutral mediator who facilitates the negotiation process. The role of the mediator, also called a facilitator, is to apply proven consensus-building techniques to the advisory committee or working group process.

After an advisory committee or working group reaches consensus on the provisions of a proposed rule, the Department, consistent with its legal obligations, uses such consensus as the basis of its proposed rule, which then is published in the Federal Register. This publication provides the required public notice and provides for a public comment period. Other participants and other interested parties retain their rights to comment, participate in an informal hearing (if requested), and request judicial review. DOE anticipates, however, that the pre-proposal consensus agreed upon by the advisory committee or working group will narrow any issues in the subsequent rulemaking.

The NRA enables DOE to establish an advisory committee or working group if it is determined that the use of the negotiated rulemaking process is in the public interest. DOE intends to develop Federal regulations that build on the depth of experience accrued in both the public and private sectors in implementing standards and programs.

DOE has determined that the regulatory negotiation process will provide for obtaining a diverse array of in-depth input, as well as an opportunity for increased collaborative discussion from both private-sector stakeholders and government officials who are familiar with the test procedures and energy efficiency of dedicated purpose pool pumps.

In initiating this regulatory negotiation process to develop the test procedure and energy conservation standards for dedicated purpose pool pumps, DOE is making a commitment to provide adequate resources to facilitate timely and successful completion of the process. This commitment includes making the process a priority activity for all representatives, components, officials, and personnel of the Department who need to be involved in the rulemaking, from the time of initiation until such time as a final rule is issued or the process is expressly terminated. DOE will provide administrative support for the process and will take steps to ensure that the advisory committee or working group has the dedicated resources it requires to complete its work in a timely fashion. Specifically, DOE will make available the following support services: Properly equipped space adequate for public meetings and caucuses; logistical support; word processing and distribution of background information; the service of a facilitator; and such additional research and other technical assistance as may be necessary.

To the maximum extent possible consistent with the legal obligations of the Department, DOE will use the consensus of the advisory committee or working group as the basis for the rule the Department proposes for public notice and comment.

As discussed above, the negotiated rulemaking process differs fundamentally from the usual process for developing a proposed rule. Negotiation enables interested and affected parties to discuss various approaches to issues rather than asking them only to respond to a proposal developed by the Department. The negotiation process involves a mutual education of the various parties on the practical concerns about the impact of standards. Each advisory committee or working group member participates in resolving the interests and concerns of other members, rather than leaving it up to DOE to evaluate and incorporate different points of view.

A key principle of negotiated rulemaking is that agreement is by consensus of all the interests. Thus, no one interest or group of interests is able to control the process. The NRA defines consensus as the unanimous concurrence among interests represented on a negotiated rulemaking committee or working group, unless the committee or working group itself unanimously agrees to use a different definition. 5 U.S.C. 562. In addition, experience has demonstrated that using a trained mediator to facilitate this process will assist all parties, including DOE, in identifying their real interests in the rule, and thus will enable parties to focus on and resolve the important issues.

The following issues and concerns will underlie the work of the Negotiated Rulemaking Committee for dedicated purpose pool pumps:

• Certain aspects of the proposed test procedure, including key test procedure conditions, as applicable; and

• All relevant data and proposals for definition of dedicated purpose pool pumps, leading to proposed energy conservation standards for dedicated purpose pool pumps.

To examine the underlying issues outlined above, and others not yet articulated, all parties in the negotiation will need DOE to provide data and an analytic framework complete and accurate enough to support their deliberations. DOE's analyses must be adequate to inform a prospective negotiation—for example, a preliminary Technical Support Document or equivalent must be available and timely.

A working group will be formed and operated in full compliance with the requirements of FACA and in a manner consistent with the requirements of the NRA. DOE has determined that the working group not exceed 25 members. The Department believes that more than 25 members would make it difficult to conduct effective negotiations. DOE is aware that there are many more potential participants than there are membership slots on the working group. The Department does not believe, nor does the NRA contemplate, that each potentially affected group must participate directly in the negotiations; nevertheless, each affected interest can be adequately represented. To have a successful negotiation, it is important for interested parties to identify and form coalitions that adequately represent significantly affected interests. To provide adequate representation, those coalitions must agree to support, both financially and technically, a member of the working group whom they choose to represent their interests.

DOE recognizes that when it considers adding covered products and establishing energy efficiency standards for residential products and commercial equipment, various segments of society may be affected in different ways, in some cases producing unique “interests” in a proposed rule based on income, gender, or other factors. The Department will pay attention to providing that any unique interests that have been identified, and that may be significantly affected by the proposed rule, are represented.

FACA also requires that members of the public have the opportunity to attend meetings of the full committee and speak or otherwise address the committee during the public comment period. In addition, any member of the public is permitted to file a written statement with the advisory committee. DOE plans to follow these same procedures in conducting meetings of the working group.

DOE anticipates that the working group will comprise no more than 25 members who represent affected and interested stakeholder groups, at least one of whom must be a member of the ASRAC. As required by FACA, the Department will conduct the negotiated rulemaking with particular attention to ensuring full and balanced representation of those interests that may be significantly affected by the proposed rule governing dedicated purpose pool pump energy conservation standards. Section 562 of the NRA defines the term “interest” as “with respect to an issue or matter, multiple parties which have a similar point of view or which are likely to be affected in a similar manner.” Listed below are parties the Department to date has identified as being “significantly affected” by a proposed rule regarding the energy efficiency of dedicated purpose pool pumps.

• The Department of Energy

• Trade Associations representing manufacturers of dedicated purpose pool pumps

• Manufacturers of dedicated purpose pool pumps and component manufacturers and related suppliers

• Distributors or contractors selling or installing dedicated purpose pool pumps

• Utilities

• Energy efficiency/environmental advocacy groups

• Consumers

One purpose of this notice of intent is to determine whether Federal regulations regarding dedicated purpose pool pumps will significantly affect interests that are not listed above. DOE invites comment and suggestions on its initial list of significantly affected interests.

Members may be individuals or organizations. If the effort is to be fruitful, participants on the working group should be able to fully and adequately represent the viewpoints of their respective interests. This document gives notice of DOE's process to other potential participants and affords them the opportunity to request representation in the negotiations. Those who wish to be appointed as members of the working group, should submit a request to DOE, in accordance with the public participation procedures outlined in the DATES and ADDRESSES sections of this notice of intent. Membership of the working group is likely to involve:

• Attendance at approximately ten (10), one (1) to two (2) day meetings (with the potential for two (2) additional one (1) or two (2) day meetings);

• Travel costs to those meetings; and

• Preparation time for those meetings.

Members serving on the working group will not receive compensation for their services. Interested parties who are not selected for membership on the working group may make valuable contributions to this negotiated rulemaking effort in any of the following ways:

• The person may request to be placed on the working group mailing list and submit written comments as appropriate.

• The person may attend working group meetings, which are open to the public; caucus with his or her interest's member on the working group; or even address the working group during the public comment portion of the working group meeting.

• The person could assist the efforts of a workgroup that the working group might establish.

A working group may establish informal workgroups, which usually are asked to facilitate committee deliberations by assisting with various technical matters (e.g., researching or preparing summaries of the technical literature or comments on specific matters such as economic issues). Workgroups also might assist in estimating costs or drafting regulatory text on issues associated with the analysis of the costs and benefits addressed, or formulating drafts of the various provisions and their justifications as previously developed by the working group. Given their support function, workgroups usually consist of participants who have expertise or particular interest in the technical matter(s) being studied. Because it recognizes the importance of this support work for the working group, DOE will provide appropriate technical expertise for such workgroups.

Every working group member must be willing to negotiate in good faith and have the authority, granted by his or her constituency, to do so. The first step is to ensure that each member has good communications with his or her constituencies. An intra-interest network of communication should be established to bring information from the support organization to the member at the table, and to take information from the table back to the support organization. Second, each organization or coalition therefore should designate as its representative a person having the credibility and authority to ensure that needed information is provided and decisions are made in a timely fashion. Negotiated rulemaking can require the appointed members to give a significant sustained commitment for as long as the duration of the negotiated rulemaking. Other qualities of members that can be helpful are negotiating experience and skills, and sufficient technical knowledge to participate in substantive negotiations.

Certain concepts are central to negotiating in good faith. One is the willingness to bring all issues to the bargaining table in an attempt to reach a consensus, as opposed to keeping key issues in reserve. The second is a willingness to keep the issues at the table and not take them to other forums. Finally, good faith includes a willingness to move away from some of the positions often taken in a more traditional rulemaking process, and instead explore openly with other parties all ideas that may emerge from the working group's discussions.

The facilitator will act as a neutral in the substantive development of the proposed standard. Rather, the facilitator's role generally includes:

• Impartially assisting the members of the working group in conducting discussions and negotiations; and

• Impartially assisting in performing the duties of the Designated Federal Official under FACA.

The DOE representative will be a full and active participant in the consensus building negotiations. The Department's representative will meet regularly with senior Department officials, briefing them on the negotiations and receiving their suggestions and advice so that he or she can effectively represent the Department's views regarding the issues before the working group. DOE's representative also will ensure that the entire spectrum of governmental interests affected by the standards rulemaking, including the Office of Management and Budget, the Attorney General, and other Departmental offices, are kept informed of the negotiations and encouraged to make their concerns known in a timely fashion.

After evaluating the comments submitted in response to this notice of intent and the requests for nominations, DOE will either inform the members of the working group that they have been selected or determine that conducting a negotiated rulemaking is inappropriate.

DOE will advise working group members of administrative matters related to the functions of the working group before beginning. DOE will establish a meeting schedule based on the settlement agreement and produce the necessary documents so as to adhere to that schedule. While the negotiated rulemaking process is underway, DOE is committed to performing much of the same analysis as it would during a normal standards rulemaking process and to providing information and technical support to the working group.

Under the framework that would be presented to ASRAC, the working group would be expected to provide a status report to ASRAC by December 29, 2015 so that ASRAC can determine next steps in the process, including negotiation of energy conservation standards for dedicated purpose pool pumps.

DOE requests comments on whether it should use the negotiated rulemaking process to address the issues addressed in this notice and if so, which parties should be included in a negotiated rulemaking to develop draft language pertaining to the energy efficiency of dedicated purpose pool pumps. DOE also seeks suggestions of additional interests and/or stakeholders that should be represented on the working group. All who wish to participate as members of the working group should submit a request for nomination to DOE.

Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email [email protected]. In the email, please indicate your name, organization (if appropriate), citizenship, and contact information. Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email: [email protected] so that the necessary procedures can be completed. Anyone attending the meeting will be required to present a government photo identification, such as a passport, driver's license, or government identification. Due to the required security screening upon entry, individuals attending should arrive early to allow for the extra time needed.

Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.

DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.

Acceptable alternate forms of Photo-ID include: U.S. Passport or Passport Card; An Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); A military ID or other Federal government issued Photo-ID card.

The Secretary of Energy has approved publication of today's notice of intent.

Table of Contents I. Authority II. Background III. Discussion IV. Approval of the Office of the Secretary I. Authority

Title III, Part C 1 of the Energy Policy and Conservation Act of 1975 (EPCA), Public Law 94-163, as amended, (42 U.S.C. 6311-6317, as codified), added by Public Law 95-619, Title IV, § 441(a), established the Energy Conservation Program for Certain Industrial Equipment, which includes commercial packaged boilers.2 In addition to specifying a list of covered commercial and industrial equipment, EPCA contains provisions that enable the Secretary of Energy to classify additional types of commercial and industrial equipment as covered equipment. (42 U.S.C. 6311(1)(L))

On August 13, 2013, the U.S. Department of Energy (DOE) published in the Federal Register a Notice of Proposed Determination (August 2013 NOPD) to clarify that natural draft commercial packaged boilers are covered equipment under EPCA. 78 FR 49202. Under EPCA, “the term `packaged boiler' means a boiler that is shipped complete with heating equipment, mechanical draft equipment, and automatic controls; usually shipped in one or more sections.” (42 U.S.C. 6311(11)(B)) In the August 2013 NOPD, DOE sought to clarify its statutory authority to cover commercial packaged boilers that do not include mechanical draft equipment by proposing the following definition for natural draft commercial packaged boilers: The term “natural draft commercial packaged boiler means a commercial packaged boiler designed to operate with negative pressure in the firebox and in the flue connection created by a chimney or the height of the unit itself, up to the draft control device. Such boilers do not require mechanical drafting equipment to vent combustion gases, but may include mechanical devices such as mechanical flue or stack dampers to limit the heat losses through the flue vent during off-cycle.” 78 FR 49203. DOE also requested public comment on the proposed determination of coverage and proposed definition.

In parallel, DOE initiated a rulemaking to amend the energy conservation standards for commercial packaged boilers. On September 3, 2013, DOE published a notice of public meeting in the Federal Register that announced the availability of the framework document. 78 FR 54197. Subsequently, on November 20, 2014, DOE published another notice of public meeting (November 2014 NOPM) in the Federal Register that announced the availability of the preliminary analysis technical support document. 79 FR 69066. Both notices requested public comment from interested parties about various aspects of the rulemakings.

DOE received several written comments that are relevant to the coverage determination of natural draft commercial packaged boilers in response both to the August 2013 NOPD and the November 2014 NOPM.

In response to the August 2013 NOPD, DOE received comments from the Air-Conditioning, Heating, and Refrigeration Institute (AHRI).

AHRI stated that the long time practices of both industry and DOE make clear that natural draft commercial packaged boilers are covered equipment subject to the efficiency standards established in accordance with EPCA, noting that the minimum efficiency standards specified for commercial boilers have been applied to all commercial packaged boiler models, natural draft or otherwise, for the past 20 years. AHRI further noted that the minimum efficiency standards specified for commercial boilers in American Society of Heating, Refrigeration, and Air-Conditioning Engineers (ASHRAE) Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings” (upon which the Federal standards are based) have been applied to all models since the first edition of the standard more than 35 years ago, and asserted that there should be no question that natural draft commercial packaged boilers are covered equipment subject to DOE's efficiency standards. Finally, AHRI suggested that if it is necessary to prevent ambiguity in the definition, DOE simply edit the definition to clarify that a commercial packaged boiler is shipped with mechanical draft equipment only if required, which AHRI asserted reflects the proper reading that the definition covers all types of boilers. (AHRI, No. 7 at pp. 1-2) 3

In response to the November 2014 NOPM, DOE received comments from various interested parties, including AHRI and Raypak Inc. Raypak argued that the industry has recognized, and there should be no question, that natural draft boilers have been covered under EPCA for many years. (Raypak, No. 35 at p. 2) AHRI commented that the minimum efficiency standards specified for commercial packaged boilers in EPCA have been applied to all models including natural draft for the past 20 years. AHRI also restated its position from previous comments (discussed above) that there should be no question that natural draft commercial packaged boilers are covered equipment subject to DOE's standards. (AHRI, No. 37 at p. 2)

In summary, comments received from interested parties, both from the August 2013 NOPD and the November 2014 NOPM, support DOE's understanding that packaged boilers, as currently defined under EPCA, include natural draft packaged boilers. Therefore, DOE concludes that it is not necessary to publish a final coverage determination for natural draft commercial packaged boilers and is withdrawing its notice of proposed determination.

The Secretary of Energy has approved publication of this withdrawal notice.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-3146; Directorate Identifier 2014-NM-249-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

Structural fatigue damage is progressive. It begins as minute cracks, and those cracks grow under the action of repeated stresses. This can happen because of normal operational conditions and design attributes, or because of isolated situations or incidents such as material defects, poor fabrication quality, or corrosion pits, dings, or scratches. Fatigue damage can occur locally, in small areas or structural design details, or globally. Global fatigue damage is general degradation of large areas of structure with similar structural details and stress levels. Multiple-site damage is global damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Global damage can also occur in multiple elements such as adjacent frames or stringers. Multiple-site-damage and multiple-element-damage cracks are typically too small initially to be reliably detected with normal inspection methods. Without intervention, these cracks will grow, and eventually compromise the structural integrity of the airplane, in a condition known as WFD. As an airplane ages, WFD will likely occur, and will certainly occur if the airplane is operated long enough without any intervention.

The FAA's WFD final rule (75 FR 69746, November 15, 2010) became effective on January 14, 2011. The WFD rule requires certain actions to prevent structural failure due to WFD throughout the operational life of certain existing transport category airplanes and all of these airplanes that will be certificated in the future. For existing and future airplanes subject to the WFD rule, the rule requires that DAHs establish a limit of validity (LOV) of the engineering data that support the structural maintenance program. Operators affected by the WFD rule may not fly an airplane beyond its LOV, unless an extended LOV is approved.

The WFD rule (75 FR 69746, November 15, 2010) does not require identifying and developing maintenance actions if the DAHs can show that such actions are not necessary to prevent WFD before the airplane reaches the LOV. Many LOVs, however, do depend on accomplishment of future maintenance actions. As stated in the WFD rule, any maintenance actions necessary to reach the LOV will be mandated by airworthiness directives through separate rulemaking actions.

In the context of WFD, this action is necessary to enable DAHs to propose LOVs that allow operators the longest operational lives for their airplanes, and still ensure that WFD will not occur. This approach allows for an implementation strategy that provides flexibility to DAHs in determining the timing of service information development (with FAA approval), while providing operators with certainty regarding the LOV applicable to their airplanes.

During Model 777 fatigue testing, skin cracks were found at the stringer S-14 lap splice. These cracks initiated at scribe lines that were made inadvertently in production when maskant was removed from the skin panels. This condition, if not corrected, could result in fatigue cracking of the skin lap splices, and consequent reduced structural integrity of the airplane and could cause sudden decompression and the inability to sustain limit flight and pressure loads.

We reviewed Boeing Alert Service Bulletin 777-53A0052, dated October 10, 2014. The service bulletin describes procedures for inspections to detect cracking of fuselage skin lap splices and repairs, modification to the skin lap splices; and repetitive inspections for cracks in the modified lap splices and repairs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

Boeing Alert Service Bulletin 777-53A0052, dated October 10, 2014, specifies concurrent accomplishment of an inspection of the fuselage skin for external scribe lines, skin cracks, and repair, which are described in Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010. The actions described in Boeing Service Bulletin 777-53A0054, Revision 1, dated November 4, 2010, are required by AD 2013-07-11, Amendment 39-17415 (78 FR 22185, April 15, 2013); therefore, those actions are not required in this NPRM.

Boeing Alert Service Bulletin 777-53A0052, dated October 10, 2014, describes doing inspections for cracks in the skin of the stringer lap splices and repair, which are also described in Boeing Alert Service Bulletin 777-53A0043, dated November 9, 2011. The actions described in Boeing Alert Service Bulletin 777-53A0043, dated November 9, 2011, are required by AD 2012-14-03, Amendment 39-17117 (77 FR 42962, July 23, 2012); therefore, those actions are not required in this NPRM.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” Refer to Boeing Alert Service Bulletin 777-53A0052, dated October 10, 2014, for information on the procedures and compliance times.

The phrase “corrective actions” is used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

The compliance time for the modification specified in this proposed AD for addressing WFD was established to ensure that discrepant structure is modified before WFD develops in airplanes. Standard inspection techniques cannot be relied on to detect WFD before it becomes a hazard to flight. We will not grant any extensions of the compliance time to complete any AD-mandated service bulletin related to WFD without extensive new data that would substantiate and clearly warrant such an extension.

The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

• In accordance with a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which steps in the service information are required for compliance with an AD. Differentiating these steps from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The steps identified as RC (required for compliance) in any service information identified previously have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.

For service information that contains steps that are labeled as Required for Compliance (RC), the following provisions apply: (1) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD, and an AMOC is required for any deviations to RC steps, including substeps and identified figures; and (2) steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

We estimate that this proposed AD affects 21 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-3147; Directorate Identifier 2014-NM-094-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received reports of fractured forward attach fittings of the inboard flap outboard aft flap track, and it is believed to be the result of corrosion pits forming on the inside diameter of the fittings. Four operators have reported finding four fractured forward attach fittings of the aft flap track of the inboard flap on airplanes with approximately 20,300 to 31,900 total flight hours and approximately 5,900 to 8,500 total flight cycles. In addition, two operators reported three cracked fittings on airplanes with approximately 29,300 to 35,700 total flight hours and approximately 5,200 to 7,900 total flight cycles. This condition, if not corrected, could result in the loss of the inboard aft flap and could lead to a punctured fuselage, causing injury to the flightcrew and passengers, and damage to the airplane.

We reviewed Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014. The service information describes procedures for an inspection for the affected part number and serial number of the main flap; various additional repetitive inspections of the fitting, if necessary; and replacement of the fitting or nested bushing installation, if necessary, which would eliminate the need for the inspections. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” Refer to this service information for details on the procedures and compliance times.

The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which steps in the service information are required for compliance with an AD. Differentiating these steps from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The steps identified as Required for Compliance (RC) in any service information identified previously have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.

For service information that contains steps that are labeled as RC, the following provisions apply: (1) the steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD, and an AMOC is required for any deviations to RC steps, including substeps and identified figures; and (2) steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

Boeing Special Attention Service Bulletin 777-57-0094, Revision 1, dated November 5, 2014, specifies groups 1, 2, 3, 4, and 5 airplanes as the effectivity. However, this proposed AD is applicable only to groups 1, 2, and 4 airplanes (Model 777-200, -200LR, -300, and -300ER airplanes) because the identified unsafe condition only affects these airplanes. For groups 3 and 5 airplanes (Model 777F airplanes), the consequence of fitting fracture on these airplanes has not been determined to be an unsafe condition at this time. Therefore, we are not requiring inspections for groups 3 and 5 airplanes. We have coordinated this difference with Boeing.

We estimate that this proposed AD affects 148 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. The nested bushing installation of the attach fitting and the fitting replacement are also optional terminating actions. We have no way of determining the number of aircraft on which these actions might be done.

According to the manufacturer, all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-3607; Directorate Identifier 2015-CE-010-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The FAA received a report of an accident where an M7 Aerospace LLC Model SA227-AC airplane experienced left engine power loss and consequent loss of control. Training manuals provide descriptions of the negative torque system (NTS), which provides partial anti-drag protection if a negative torque condition is sensed. This feature might cause pilots to assume the system automatically provides full anti-drag protection in the event of an engine failure or power loss. The pilot must also take prompt action to fully feather the propeller on the failed engine to reduce drag. A pilot's sole reliance on the NTS for reducing drag in the event of engine power loss may result in the pilot's failure to initiate the Engine Failure Inflight checklist and feather the propellers in time.

This condition, if not corrected, could result in loss of control of the aircraft due to excessive asymmetric drag.

We reviewed the following M7 Aerospace LLC AFM revisions:

• AFM revision dated May 14, 2015, section III, SA26-AT Dash One;

• AFM revision dated May 14, 2015, section III, SA26-AT Dash Two;

• AFM revision B-33, sections i and III, SA226-AT, dated November 14, 2014;

• AFM revision A-29, sections i and III, SA226-T, dated November 14, 2014;

• AFM revision B-29, sections i and 3, SA226-T(B), dated November 14, 2014;

• AFM revision A-43, sections i and III, SA226-TC, dated November 14, 2014;

• AFM (4AC) revision B-11, sections 0 and 3, SA227-AC, dated November 14, 2014;

• AFM (4MC) revision A-12, sections 0 and 3, SA227-AC, dated November 14, 2014;

• AFM (6AC) revision A-16, sections 0 and 3, SA227-AC, dated November 14, 2014;

• AFM (7AC) revision B-19, sections 0 and 3, SA227-AC, dated November 14, 2014;

• AFM (7MC) revision A-13, sections 0 and 3, SA227-AC, dated November 14, 2014;

• AFM (8AC) revision A-15, sections 0 and 3, SA227-AC, dated November 14, 2014;

• Pilot operating handbook (POH)/AFM (4AT) revision A-12, sections 0 and 3, SA227-AT, dated November 14, 2014;

• POH/AFM (6AT) revision 13, sections 0 and 3, SA227-AT, dated November 14, 2014;

• POH/AFM (6AT), section 7, revision 7, SA227-AT, dated November 14, 2014;

• POH/AFM (7AT) revision B-12, sections 0 and 3, SA227-AT, dated November 14, 2014;

• POH/AFM (8AT) revision 13, sections 0 and 3, SA227-AT, dated November 14, 2014;

• AFM (6BC) revision 21, sections 0 and 3, SA227-BC, dated November 14, 2014;

• AFM (6CC) revision 17, sections 0 and 3, SA227-CC, dated November 14, 2014;

• AFM (6DC) revision 34, sections 0 and 3, SA227-DC, dated November 14, 2014;

• AFM (8DC) revision 8, sections 0 and 3, SA227-DC, dated November 14, 2014;

• POH/AFM revision 15, sections 0 and 3, SA227-TT Fairchild 300, dated November 14, 2014;

• POH/AFM revision 13, sections 0 and 3, SA227-TT Fairchild 312, dated November 14, 2014;

• POH/AFM revision 29, sections 0 and 3, SA227-TT, dated November 14, 2014.

The M7 Aerospace LP service information describes procedures for inflight engine shutdown procedures. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

In addition, minimum controllable airspeed for single engine landing is being investigated for possible future action.

This proposed AD would require updates be inserted into the AFM that will clearly establish that the NTS is not designed to automatically feather the propeller but only to provide drag protection.

The proposed requirements do not address anything on the above-referenced minimum controllable airspeed for single engine landing.

We estimate that this proposed AD affects 360 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 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 the 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 would modify the restricted area airspace at Farallon De Medinilla Island, Mariana Islands, GU, to enhance aviation safety and accommodate essential U.S. Navy training requirements.

The Department of the Navy is seeking to expand R-7201 out from its current 3-nautical mile (NM) radius to a 12-NM radius. The proposed action is needed in order to support training activities that involve the use of advanced weapons systems which the current airspace does not sufficiently and safely provide. The Navy and other services require fully capable training and testing range complexes (land, sea, and airspace) that provide realistic and controlled environments with sufficient surface Danger Zones (DZs) and Special Use Airspace vital for safety and mission success.

Farrallon de Medinilla (FDM) consists of the island land mass and the restricted airspace designated R-7201. The land mass is approximately 1.7 miles long and 0.3 miles wide. It contains a live-fire and inert bombing range and supports live-fire and inert engagements such as surface-to-ground and air-to-ground gunnery, bombing and missile exercises, fire support, and precision weapons. Restricted Area R-7201 surrounds FDM and the surrounding waters within a 3-NM radius from center extending from the surface to Flight Level (FL) 600. FDM and R-7201 are the Department of Defense's (DOD) only United States controlled range in the western Pacific available to forward-deployed forces for live-fire and inert training. For this reason, it plays a unique role in national defense. R-7201's location is ideal for access and availability and its relative isolation facilitates a variety of attack profiles.

Due to Guam and the Commonwealth of the Northern Mariana Islands' (CNMI) strategic location and DOD's ongoing reassessment of the Western Pacific military alignment, there has been a dramatic increase in the importance of the Mariana Islands Range Complex (MIRC) as a training venue and its capabilities to support required military training. Flight training profiles, altitudes and speed are severely restricted to ensure containment due to the small size of the current restricted area. In order to fully exploit the capabilities of modern weapons systems and provide the required training scenarios that replicate conditions encountered during deployments today, it is necessary to expand R-7201 laterally. This action would enable the military to continue to achieve and maintain service readiness using the MIRC to support and conduct current, emerging, and future training activities. The proposed R-7201 expansion would support naval gun fire training, readiness and the utilization of advanced lasers with Nominal Ocular Hazard Distance that exceed the current 3 NM constraints of the existing airspace. Additionally, the expansion would serve to support the U.S. Air Force's Intelligence, Surveillance and Reconnaissance (ISR)/Strike program. It is anticipated that a 45 percent increase in operations and training would occur within the expanded airspace and will accommodate an increased training tempo, newer aircraft and weapon systems that are commensurate with the ISR/Strike mission that the current airspace cannot support.

The Navy has leased FDM from CNMI since 1971 and in 1983 negotiated a 50-year lease with an option to renew for another 50 years. No maneuver training is permitted on FDM and the nearshore waters are leased to the U.S. for military purposes, specifically for use as a live fire naval gunfire and air warfare air strike training range. As such, FDM and its nearshore area have always been an off-limits area to all personnel both civilian and military due to unexploded ordnance concerns. In addition to the proposed R-7201 expansion, the DZ around FDM would be expanded to 12 NM to align with the proposed restricted airspace. The DZ would restrict all private and commercial vessels from entering the area only when hazardous activities are scheduled.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2014-0739 and Airspace Docket No. 14-AWP-11) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2015-0739 and Airspace Docket No. 14-AWP-11.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at www.regulations.gov.

You may review the public docket containing the proposal, any comments received and any final disposition in person at the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Western Service Center, Federal Aviation Administration, 1601 Lind Ave. SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is proposing an amendment to 14 CFR part 73 to expand the lateral dimensions of restricted area R-7201, Farallon De Medinilla Island, Mariana Islands, GU and rename it R-7201A. The proposed R-7201A would be the minimum size required for containing stand-off weapons employment, naval gun fire training, and laser activities conducted there. The actual usage of the restricted area is estimated to be 4-5 days per week, 3-6 hours per day with 1,680 sorties per year.

The proposed R-7201A boundary would extend the current boundary from 3 NM to 12 NM from latitude 16°01′04″ N., longitude 146°03′31″ E.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (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 will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subjected to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows:

Boundaries: Beginning at latitude 16°01′04″ N., longitude 146°03′31″ E.; extending outward in a 12 NM radius.

Altitudes: Surface up to and including FL 600.

Times of Use: As scheduled by NOTAM 12 hours in advance.

Controlling Agency: FAA, Guam Center/Radar Approach Control.

Using Agency: Commander, Naval Forces, Marianas.

a. Submitting CBI. Do not submit CBI to EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

b. Tips for Preparing Your Comments. When submitting comments, remember to:

i. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

ii. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns, and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

On October 17, 2006 (71 FR 61144), the EPA strengthened the level of the 24-hour PM2.5 National Ambient Air Quality Standards (NAAQS), lowering the primary and secondary standards from 65 micrograms per cubic meter (µg/m3), the 1997 standard, to 35µg/m3. On November 13, 2009 (74 FR 58688), the EPA designated three nonattainment areas in Utah for the 24-hour PM2.5 NAAQS of 35 µg/m3. These are the Salt Lake City, UT; Provo, UT; and Logan, UT-ID nonattainment areas. The EPA originally designated these areas under CAA title I, part D, subpart 1, which required Utah to submit an attainment plan for each area no later than three years from the date of their nonattainment designations. These plans needed to provide for the attainment of the PM2.5 standard as expeditiously as practicable, but no later than five years from the date the areas were designated nonattainment.

Subsequently, on January 4, 2013, the U.S. Court of Appeals for the District of Columbia held that the EPA should have implemented the 2006 PM2.5 24-hour standard based on both CAA title I, part D, subpart 1 and subpart 4. Under subpart 4, nonattainment areas are initially classified as moderate, and moderate area attainment plans must address the requirements of subpart 4 as well as subpart 1. Additionally, CAA subpart 4 sets a different SIP submittal due date and attainment year. For a moderate area, the attainment SIP is due 18 months after designation and the attainment year is the end of the sixth calendar year after designation. On June 2, 2014 (79 FR 31566), the EPA finalized the Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particulate (PM2.5) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS (“the Classification and Deadline Rule”). This rule classified to moderate the areas that were designated in 2009 as nonattainment, and set the attainment SIP submittal due date for those areas at December 31, 2014. This rule did not affect the moderate area attainment date of December 31, 2015.

On March 23, 2015, the EPA proposed the Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements (“PM2.5 Implementation Rule”), 80 FR 15340, which partially addresses the January 4, 2013 court ruling. This proposed rule details how air agencies should meet the statutory SIP requirements that apply under subparts 1 and 4 to areas designated nonattainment for any PM2.5 NAAQS, such as: General requirements for attainment plan due dates and attainment demonstrations; provisions for demonstrating reasonable further progress; quantitative milestones; contingency measures; Nonattainment New Source Review (NNSR) permitting programs; and RACM (including reasonably available control technology (RACT)), among other things. The statutory attainment planning requirements of subparts 1 and 4 were established to ensure that the following goals of the CAA are met: (i) That states implement measures that provide for attainment of the PM2.5 NAAQS as expeditiously as practicable; and, (ii) that states adopt emissions reduction strategies that will be the most effective, and the most cost-effective, at reducing PM2.5 levels in nonattainment areas.

The PM2.5 Implementation Rule proposed a process for states to determine the control strategy for PM2.5 attainment plans. The process consists of identifying all technologically and economically feasible control measures, including control technologies for all sources of direct PM2.5 and PM2.5 precursors in the emissions inventory for the nonattainment area which are not otherwise exempted from consideration for controls.1 From that list of measures, the state must identify those that it can implement within four years of designation of the area (and which would thus meet the statutory requirements for RACM and RACT) and any “additional reasonable measures,” which EPA is proposing in the PM2.5 Implementation Rule to define as those technologically and economically feasible measures that the state can only implement on sources in the nonattainment area after the four year deadline for RACM and RACT has passed. See proposed 40 CFR 51.1000.

Section 172(c)(1) of the Act (from subpart 1) requires that attainment plans, in general, provide for the implementation of all RACM as expeditiously as practicable (including RACT) and shall provide for attainment of the national primary ambient air quality standards. Section 189(a)(1)(C) (from subpart 4) requires moderate area attainment plans to contain provisions to assure that RACM is implemented no later than four years after designation.

The EPA stated its interpretation of the RACT and RACM requirements of subparts 1 and 4 in the 1992 General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990, 57 FR 13498 (Apr. 6, 1992). For RACT, the EPA followed its “historic definition of RACT as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.” 57 FR 13541. Like RACT, the EPA has historically considered RACM to consist of control measures that are reasonably available, considering technological and economic feasibility. See PM2.5 Implementation Rule, 80 FR 15373.

Prior to the January 4, 2013 decision of the DC Circuit Court of Appeals, Utah developed a PM2.5 attainment plan intended to meet the requirements of subpart 1. The EPA submitted written comments dated November 1, 2012 to the Utah Division of Air Quality (DAQ) on Utah's draft PM2.5 SIP, technical support document (TSD), and area source and other rules. After the court's decision, Utah amended its attainment plan to address requirements of subpart 4. On December 2, 2013, the EPA provided comments on Utah's revised draft PM2.5 SIPs for the Salt Lake City and Provo areas, including the TSDs and rules in Section IX, Part H. These written comments from EPA included some comments applicable to the rules we are proposing to act on today. The comment letters can be found within the docket for this action on www.regulations.gov.

In addition to Utah's February 2, 2012 SIP submittal, on May 9, 2013, June 8, 2013, February 18, 2014, April 17, 2014, May 20, 2014, July 10, 2014, August 6, 2014, and December 9, 2014 the State of Utah submitted to EPA various revisions to the Division of Administrative Rules (DAR), Title R307—Environmental Quality, set of rules, most of which are applicable to the Utah SIP for PM2.5 nonattainment areas. The new rules or revised rules we are addressing in this proposed rule were provided by Utah in the nine different submissions listed above, and these rules are: R307-101-2, General Requirements: Definitions; R307-103, Administrative Procedures; R307-303, Commercial Cooking; R307-307, Road Salting and Sanding; R307-312, Aggregate Processing Operations for PM2.5 Nonattainment Areas; R307-328, Gasoline Transfer and Storage; R307-335, Degreasing and Solvent Cleaning Operations; R307-342, Adhesives and Sealants; R307-343 Emissions Standards for Wood Furniture Manufacturing Operations; R307-344, Paper, Film, and Foil Coatings; R307-345, Fabric and Vinyl Coatings; R307-346, Metal Furniture Surface Coatings; R307-347, Large Appliance Surface Coatings; R307-348, Magnet Wire Coatings; R307-349, Flat Wood Panel Coatings; R307-350, Miscellaneous Metal Parts and Products Coatings; R307-351, Graphic Arts; R307-352, Metal Container, Closure, and Coil Coatings; R307-353, Plastic Parts Coatings; R307-354, Automotive Refinishing Coatings; R307-355, Control of Emissions from Aerospace Manufacture and Rework Facilities; R307-356, Appliance Pilot Light; R307-357, Consumer Products; and R307-361, Architectural Coatings.

A previous rule, Rule R307-340 Surface Coating Processes, was replaced in these submittals by the specific rules for coatings listed above. Utah correspondingly repealed R307-340. In addition, Rule R307-342, Adhesives and Sealants, replaces an unrelated rule, R307-342 Qualifications of Contractors and Test Procedures for Vapor Recovery Systems for Gasoline Delivery Tanks. The removal of the previous version of R307-342 is addressed by the State's February 2, 2012 submittal, which repeals R307-342 and amends R307-328, Gasoline Transfer and Storage, to account for the repeal of R307-342.

The final Utah submittal for fourteen of these rules was the December 9, 2014 submittal. The final Utah submittals for the remaining rules were from the February 2, 2012, May 9, 2013, June 8, 2013, February 18, 2014, April 17, 2014, May 20, 2014, July 10, 2014, and August 6, 2014 submittals. For each individual rule, the particular submittal containing the final version of the rule is identified in the technical support document provided in the docket for this proposed action.

The SIP revisions in the February 2, 2012, May 9, 2013, June 8, 2013, February 18, 2014, April 17, 2014, May 20, 2014, July 10, 2014, August 6, 2014, and December 9, 2014 submittals that we are proposing to act on involve revisions to the DAR, Title R307—Environmental Quality, R307-101-2 General Requirements: Definitions; R307-103, Administrative Procedures; and the R307-300 Series; Requirements for Specific Locations (Within Nonattainment and Maintenance Areas). A number of the rules were submitted in multiple submission packages. The final, most recent submission package for each individual rule supersedes earlier submissions, and our proposed determination for each rule takes all changes from those earlier submissions into account. These final rule submissions, except for revisions to R307-101-2, R307-103, and R307-328, and the repeal of R307-342, are submitted and requested for approval as RACM components of the PM2.5 SIP submitted by the State of Utah. EPA is also taking action on two rule revisions that do not pertain to the Utah PM2.5 SIPs which include revisions to R307-328 and the repeal of R307-342. All of these rule revisions found in these submittals can be found on www.regulations.gov.

The rules for RACM for area sources fall into two types. First, there are a number of similar rules for control of VOC emissions. These rules cover categories of area sources that use materials that contain VOCs, and also in some cases categories of area sources that manufacture or produce these materials.2 The second type of rule provide specific requirements for emissions of direct PM2.5, VOCs, NOx, and SO2 from a few specific categories of sources.3

For the first type of rule, Utah generally allows area sources to comply in two ways. One is through use or production of materials with specified VOC content levels. The other is through use of add-on controls. For use of materials, in most rules sources can demonstrate compliance through manufacturer's data sheets. For add-on controls, the State has provided specific test methods to determine the efficiency of the controls.

The following is a summary of EPA's evaluation of the rule revisions. The details of our evaluation are provided in a TSD that is available in the docket for this action. In general, we reviewed the rules for: enforceability; RACM requirements (for those rules submitted as RACM); and other applicable requirements of the Act.

With respect to enforceability, section 110(a)(2)(A) of the Act requires SIP provisions such as emission limitations to be enforceable, and sections 110(a)(2)(F)(i) and (F)(ii) require plans to contain certain types of provisions related to enforceability, such as source monitoring, as prescribed by the Administrator. 40 CFR part 51, subpart K, Source Surveillance, prescribes requirements that plans must meet in this respect. 40 CFR Section 51.211 requires plans to contain legally enforceable procedures for owners or operators of stationary sources to maintain records and report information to the State in order to determine whether the source is in compliance. 40 CFR Section 51.212 requires plans to, among other things, contain enforceable test methods for each emission limit in the plan. Appropriate test methods may be selected from Appendix M to 40 CFR part 51 or Appendix A to 40 CFR part 60, or a state may use an alternative method following review and approval of that method by the EPA.

Our review of the rules for enforceability revealed a few potential issues. First, certain rules did not clearly identify the test method that should be used to determine compliance. On August 4, 2015, the State provided a clarification letter that addresses this issue. Second, certain rules specified use of an “equivalent method” for compliance. This can create issues for enforceability of the provision under section CAA 110(a)(2)(C), as well as potentially violating the requirement of section 110(i) that SIP requirements for stationary sources can only be changed (with certain limited exceptions) through the SIP revision process. The State has provided a letter on August 4, 2015 that commits to provide a specific SIP revision to either remove the provision for use of an equivalent method, or to specify the other methods that can be used for compliance. Details of our analysis are in the docket for this rulemaking.

For review of the State's RACM analyses, the EPA proposes to adopt the interpretation of RACM set out in the General Preamble, 57 FR 13498, 13540-13544 (April 6, 1992), and described in the March 23, 2015 proposed PM2.5 Implementation Rule. That is, RACM consists of the control measures that are reasonably available considering technological and economic feasibility. This includes EPA's longstanding interpretation that economic feasibility “involves considering the cost of reducing emissions and the difference between the cost of an emissions reduction measure at a particular source and the cost of emissions reduction measures that have been implemented at other similar sources in the same or other areas.” 80 FR 15373-74.

Our detailed review of the State's RACM analyses for the rules we are acting on is provided in a TSD in the docket for this action. We did not review whether Utah's PM2.5 attainment plan as a whole addresses all necessary requirements for RACM under subparts 1 and 4. Based on our review, we are proposing to approve the State's submission that the particular rules we are acting on constitute RACM for the covered source categories, but we are not proposing to approve the PM2.5 attainment plan as a whole with respect to RACM requirements. We will act on the remainder of the attainment plan in a separate action.

Finally, we reviewed all rules for compliance with other requirements of the Act. This review revealed a potential issue with one provision in the general definitions in R307-101-2. The provision defined “PM2.5 precursor” to include specifically only VOC, SO2, and NOX. As a factual matter, ammonia (NH3) is also a precursor to PM2.5, and at a minimum PM2.5 attainment plans should include inventories of all PM2.5 precursors.4 However, after review by UDAQ and EPA, we found that this definition was not used anywhere in Utah's SIP and could be removed. On August 4, 2015, the State provided a commitment letter to address the issue by removing the definition of PM2.5 precursor.

EPA is proposing approval of the revisions to Administrative Rules R307-101-2 and R307-103, along with the additions/revisions/repeals in R307-300 Series; Requirements for Specific Locations (Within Nonattainment and Maintenance Areas), R307-303, R307-307, R307-312 (conditionally approved, see below), R307-335, R307-340 (repealed), R307-342 (repealed and replaced), R307-343, R307-344, R307-345, R307-346, R307-347, R307-348, R307-349, R307-350, R307-351, R307-352, R307-353, R307-354, R307-355, R307-356, R307-357, and R307-361 for incorporation to the Utah SIP as submitted by the State of Utah on May 9, 2013, June 8, 2013, February 18, 2014, April 17, 2014, May 20, 2014, July 10, 2014, August 6, 2014, and December 9, 2014. We are proposing to approve Utah's determination that the above rules in R307-300 Series; Requirements for Specific Locations (Within Nonattainment and Maintenance Areas) constitute RACM for the Utah PM2.5 SIP for the specific source categories addressed; however, we are not proposing to determine that Utah's PM2.5 attainment plan has met all requirements regarding RACM under subparts 1 and 4 of Part D, title I of the Act. We intend to act separately on the remainder of Utah's PM2.5 attainment plan.

EPA is proposing to conditionally approve revisions to R307-312 and R307-328. Additionally, EPA is proposing to conditionally approve Utah's determination that R307-312 constitutes RACM for the Utah PM2.5 SIP for aggregate processing operations. As stated above, we are not proposing to determine that Utah's PM2.5 attainment plan has met all requirements regarding RACM under subparts 1 and 4 of Part D, title I of the Act. Under section 110(k)(4) of the Act, EPA may approve a SIP revision based on a commitment by the State to adopt specific enforceable measures by a date certain, but not later than one year after the date of approval of the plan revision. On August 4, 2015, Utah submitted a commitment letter to adopt and submit specific revisions within one year of our final action on these submittals; specifically to remove the phrase “or equivalent method” in one rule and to specify three equivalent methods in the other rule. If we finalize our proposed conditional approval, Utah must adopt and submit the specific revisions it has committed to within one year of our finalization. If Utah does not submit these revisions within one year, or if we find Utah's revisions to be incomplete, or we disapprove Utah's revisions, this conditional approval will convert to a disapproval. If any of these occur and our conditional approvals convert to a disapproval, that will constitute a disapproval of a required plan element under part D of title I of the Act, which starts an 18-month clock for sanctions, see CAA section 179(a)(2), and the two-year clock for a federal implementation plan (FIP), see CAA section 110(c)(1)(B).

Finally, EPA is proposing to approve the repeal of R307-342, Qualification of Contractors and Test Procedures for Vapor Recovery Systems for Gasoline Delivery Tanks, submitted by DAQ on February 2, 2012.

Under section 110(l) of the CAA, the EPA cannot approve a SIP revision if the revision would interfere with any applicable requirements concerning attainment and reasonable further progress toward attainment of the NAAQS, or any other applicable requirement of the Act. In addition, section 110(l) requires that each revision to an implementation plan submitted by a state shall be adopted by the state after reasonable notice and public hearing.

The Utah SIP revisions that the EPA is proposing to approve do not interfere with any applicable requirements of the Act. The DAR section R307-300 Series submitted by the DAQ on May 9, 2013, June 8, 2013, February 18, 2014, April 17, 2014, May 20, 2014, July 10, 2014, August 6, 2014, and December 9, 2014 are intended to strengthen the SIP and to serve as RACM for certain area sources for the Utah PM2.5 SIP. The repeal of R307-340 does not weaken the Utah SIP or the Ozone Maintenance Plan as a number of the new or revised rules addressing surface coatings take the place of R307-340 in total, and are as or more protective than R307-340. The revision to R307-328, Gasoline Transfer and Storage, and the repeal of R307-342, Qualification of Contractors and Test Procedures for Vapor Recovery Systems for Gasoline Delivery Tanks, submitted on by DAQ February 2, 2012, do not weaken the Utah SIP or the Ozone Maintenance Plan, because R307-328 replaces the testing requirements for trucks in R307-342 with the federal Maximum Achievable Control Technology (MACT) requirements. Finally, Utah's submittals provide adequate evidence that the revisions were adopted after reasonable public notices and hearings. Therefore, CAA section 110(l) requirements are satisfied.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the DAQ rules promulgated in the DAR, R307-300 Series as discussed in section III, EPA's Evaluation of Utah's Submittals, of this preamble. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

In FR Doc. 2015-17190 of July 14, 2015 (80 FR 41198), there were a number of technical and typographical errors that are identified and corrected in the Correction of Errors section of this document.

On page 41210, in our discussion of the factors considered but not used in creating proposed strata, we inadvertently omitted a term and used an incorrect term.

On pages 41212 and 41269, we made errors in referencing the name of the Comprehensive Care for Joint Replacement (CCJR) model.

On pages 41223 and 41224, in our discussion of the proposed pricing adjustment for high payment episodes, we made errors in describing the distribution model presented in Figure 2.

On page 41234, in our discussion of the proposed combination of CCJR episodes anchored by Medical Severity Diagnosis-Related Groups (MS-DRGs) 469 and 470, we made an error in the unpooled hospital-specific historical average payments calculation for MS-DRG 469 anchored target prices.

On pages 41235 and 41236, in our discussion of the proposed approach to combine pricing features, we made an error in the placement and the language of a sentence that was part of the bulleted text.

On page 41240, in the discussion of the criteria for applicable hospitals and performance scoring, we made errors in stating the percentage of eligible elective primary total hip arthroplasty/total knee arthoplasty (THA/TKA) patients for which hospitals must submit data and the timeframe for the submission of data.

On pages 41241 and 41242, we made errors in stating a National Quality Forum (NQF) measure number.

On page 41250, in the discussion of the accounting for CCJR reconciliation payments and repayments in other models and programs, we inadvertently omitted a word.

On page 41251, in the discussion of the accounting for per beneficiary per month (PBPM) payments in the episode definition, we made an error in stating the total number of models with PBPMs.

On pages 41268, 41270, and 41278, we made typographical errors in footnotes 42, 43, and 55, respectively. These errors include omitting the title of the article that was referenced, omitting the text of the footnote, and inadvertently adding a reference to a footnote.

On page 41283, in the discussion of “Case Mix Adjustment,” we inadvertently omitted a term.

On pages 41242, 41281, and 41284, we made technical and typographical errors in using the acronyms “CCJR-,” “HCAHPS,” and “THA”.

On page 41285, in our discussion of pre-operative assessments, we made errors in our designation of several bulleted paragraphs.

On pages 41287 and 41288, Table 16, we made errors in the table formatting and omitted language that would identify the entries pertaining to the duration of the performance period.

In FR Doc. 2015-17190 of July 14, 2015 (80 FR 41198), make the following corrections:

1. On page 41210, first column, fifth full paragraph, lines 1 through 3, the phrase “these measures are proposed to be part of the selection stratus” is corrected to read “these measures are not proposed to be part of the selection strata”.

2. On page 41212, lower half of the page, second column, first paragraph, lines 1 and 2, the phrase “Coordinated Quality Care-Joint Replacement” is corrected to read “Comprehensive Care for Joint Replacement”.

3. On page 41223, third column, last paragraph, lines 7 through 12, the sentence “Similarly, we believe the BPCI distribution of Model 2 90-day LEJR episode payment amounts as displayed in Figure 1 provides information that is relevant to policy development regarding CCJR episodes.” is corrected to read “Similarly, we believe the distribution of 90-day LEJR episode payment amounts utilizing the BPCI Model 2 episode definition as displayed in Figure 2 provides information that is relevant to policy development regarding CCJR episodes.”.

4. On page 41224, top of the page, in the figure heading (Figure 2), the heading “FIGURE 2: ESTIMATED NATIONAL DISTRIBUTION of BPCI MODEL 2 LEJR 90-day EPISODE PAYMENT AMOUNTS” is corrected to read “FIGURE 2: ESTIMATED NATIONAL DISTRIBUTION OF LEJR 90-day EPISODE PAYMENT AMOUNTS”.

5. On page 41234, first column, first full paragraph, line 11, the phrase “hospital weight” is corrected to read “anchor factor”.

6. On page 41235, third column—

a. Sixth bulleted paragraph, last line, the phrase “the previous step.” is corrected to read “the previous step. We have posted region-specific historical average episode payments on the CCJR proposed rule Web site at http://innovation.cms.gov/initiatives/ccjr/.”.

b. Last bulleted paragraph, lines 12 through 13, and page 41236, first column, first partial paragraph, lines 1 through 3, the sentence, “We have posted region-specific pooled historical average episode payments on the CCJR proposed rule Web site at http://innovation.cms.gov/initiatives/ccjr/.” is corrected by removing the sentence.

7. On page 41240—

a. Second column, last bulleted paragraph, line 3, the figure “70” is corrected to read “80”.

b. Third column—

(1) First full paragraph (bulleted), line 3, the phrase “12 month” is corrected to read “performance”.

(2) Second full paragraph, line 30, the figure “70” is corrected to read “80”.

8. On page 41241—

a. Top of the page, second column, first partial paragraph, line 27, the parenthetical reference “(NQF #1661)” is corrected to read “(NQF #0166)”.

b. Lower third of the page, in the table titled “TABLE 8—QUALITY MEASURE WEIGHTS IN COMPOSITE QUALITY SCORE”, first column of the table (Quality measure), line 3, the parenthetical reference “(NQF #1661)” is corrected to read “(NQF #0166)”.

9. On page 41242, top third of the page, third column, first full paragraph, line 9—

a. The acronym “HCAPHS” is corrected to read “HCAHPS”.

b. The parenthetical reference “(NQF #1661)” is corrected to read “(NQF #0166)”.

10. On page 41250, third column, first full paragraph, line 12, the phrase “to be able make” is corrected to read “to be able to make”.

11. On page 41251, second column, first full paragraph, line 2, the phrase “four existing models” is corrected to read “active models”.

12. On page 41268, second column, last paragraph, the footnote (footnote 42), “ 42 Naylor MD, Brooten D, Campbell R, Jacobsen BS, Mezey MD, Pauly MV, Schwartz JS. JAMA. 1999: 281(7): 613-620. doi:10/1001/jama.281.7.613” is corrected to read “ 42 Naylor MD, Brooten D, Campbell R, Jacobsen BS, Mezey MD, Pauly MV, Schwartz JS. Comprehensive discharge planning and home follow-up of hospitalized elders: A randomized clinical trial. JAMA. 1999: 281(7): 613-620. doi:10/1001/jama.281.7.6136.”.

13. On page 41269—

a. Second column, second full paragraph, lines 28 and 29, the phrase “Coordinated quality care-joint replacement model” is corrected to read “Comprehensive Care for Joint Replacement model”.

b. Third column, first partial paragraph, lines 5 and 6, the phrase “Medicare-approved coordinated quality care-Joint Replacement model)” is corrected to read “Medicare-approved Comprehensive Care for Joint Replacement model)”.

14. On page 41270, third column, following the last paragraph, is corrected by adding the following footnoted paragraph (Footnote 43):

“ 43 Telehealth in an Evolving Health Care Environment: Workshop Summary (2012). Available at: http://www.ic4n.org/wp-content/uploads/2014/06/IoM-Telehealth-2012-Workshop-Summary.pdf. Accessed on June 7, 2015.”

15. On page 41278, second column, third footnoted paragraph (Footnote 55) “ 55 Soohoo NF, Farng E, Lieberman JR, Chambers L, Zingmond DS. Factors That Predict Short-term Complication Rates After Total Hip Arthroplasty. Clin Orthop Relat Res. Sep 2010; 468(9): 2363-2371. Cram P, Vaughn-Sarrazin MS, Wolf B, Katz JN, Rosenthal GE. A comparison of total hip and knee replacement in specialty and general hospitals. J Bone Joint Surg Am. Aug 2007; 89(8): 1675-1684.” is corrected to read “ 55 Soohoo NF, Farng E, Lieberman JR, Chambers L, Zingmond DS. Factors that predict short-term complication rates after total hip arthroplasty. Clin Orthop Relat Res. Sep 2010; 468(9): 2363-2371.”.

16. On page 41281, second column, last partial paragraph, line 1, the phrase “We note that CCJR—we chose to align” is corrected to read “We note that we chose to align”.

17. On page 41283, first column, sixth bulleted paragraph, the phrase “discharge and survey.” is corrected to read “discharge and survey completion.”.

18. On page 41284—

a. First column, first partial paragraph, line 44, the acronym “HCAPHS” is corrected to read “HCAHPS”.

b. Second column, first partial paragraph, line 7, the phrase “THA THA/TKA patient-reported” is corrected to read “THA/TKA patient-reported”.

19. On page 41285, second column, second bulleted paragraph—

a. Line 17, the phrase “—PROMIS” is corrected to read “++ PROMIS”.

b. Line 29, the phrase “—American Society” is corrected to read “++ American Society”.

c. Line 33, the phrase “—Total painful” is corrected to read “++ Total painful”.

d. Line 34, the phrase “—Quantified spinal” is corrected to read “++ Quantified spinal”.

20. On pages 41287 and 41288, the table titled “TABLE 16—EXAMPLE OF POTENTIAL PERFORMANCE PERIODS FOR PRE- AND POST-OPERATIVE THA/TKA VOLUNTARY DATA SUBMISSION” is corrected to read as follows:

Executive Summary

Purpose of this document. On May 24, 1996, we published in the Federal Register a final rule designating 3,887,800 acres (ac) (1,573,340 hectares (ha)) of critical habitat for the marbled murrelet (61 FR 26256) in the States of Washington, Oregon, and California. On October 5, 2011, we published in the Federal Register a final rule revising critical habitat for the marbled murrelet (76 FR 61599), resulting in the removal of approximately 189,671 ac (76,757 ha) of critical habitat in the States of Oregon and California. We are reconsidering the 1996 final rule, as revised in 2011, for the purpose of assessing whether all of the designated areas meet the statutory definition of critical habitat. We are not proposing any changes to the boundaries of the specific areas identified as critical habitat.

Why we need to reconsider the rule. In 2012, the American Forest Resource Council (AFRC) and other parties filed suit against the Service, challenging the designation of critical habitat for the marbled murrelet, among other things. After this suit was filed, the Service concluded that the 1996 rule that first designated critical habitat for the marbled murrelet, as well as the 2011 rule that revised that designation, did not comport with recent case law holding that the Service should specify which areas were occupied at the time of listing, and should further explain why unoccupied areas are essential for conservation of the species. Hence, the Service moved for a voluntary remand of the critical habitat rule, requesting until September 30, 2015, to issue a proposed rule, and until September 30, 2016, to issue a final rule. On September 5, 2013, the court granted the Service's motion, leaving the current critical habitat rule in effect pending completion of the remand.

The basis for our action. Under the Act, any species that is determined to be an endangered or threatened species shall, to the maximum extent prudent and determinable, have habitat designated that is considered to be critical habitat. Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best scientific data available after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the procedures for designating or revising critical habitat for listed species.

We considered the economic impacts of this proposed rule. Our evaluation of the potential economic impacts of this rulemaking regarding critical habitat for the marbled murrelet is provided in this document; we seek public review of our analysis.

We will base any final action on the best scientific data available. Therefore, we request comments or information from the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:

(1) What areas within the currently designated critical habitat for the marbled murrelet were occupied at the time of listing and contain features essential to the conservation of the species;

(2) Special management considerations or protection that may be needed in critical habitat areas, including managing for the potential effects of climate change;

(3) What areas within the currently designated critical habitat are essential for the conservation of the species and why; and

(4) Information on the extent to which the description of economic impacts in this document is a reasonable estimate of the likely economic impacts of our proposed determination.

We will consider all comments and information received during the comment period on this proposed rulemaking during our preparation of a final determination.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b) of the Act directs that determinations regarding the designation of critical habitat, or revisions thereto, must be made ”on the basis of the best scientific data available.”

You may submit your comments and materials by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your comments to allow us to verify any scientific information you include.

In making a final decision on this matter, we will take into consideration the comments and any additional information we receive. Comments and materials received, as well as some of the supporting documentation used in the preparation of a final determination, will be available for public inspection on http://www.regulations.gov. All information we use in making our final rule will be available by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Washington Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

For additional information on previous Federal actions concerning the marbled murrelet, refer to the final listing rule published in the Federal Register on October 1, 1992 (57 FR 45328), the final rule designating critical habitat published in the Federal Register on May 24, 1996 (61 FR 26256), and the final revised critical habitat rule published in the Federal Register on October 5, 2011 (76 FR 61599). In the 1996 final critical habitat rule, we designated 3,887,800 ac (1,573,340 ha) of critical habitat in 32 units on Federal and non-Federal lands. On September 24, 1997, we completed a recovery plan for the marbled murrelet in Washington, Oregon, and California (USFWS 1997, entire). On January 13, 2003, we entered into a settlement agreement with AFRC and the Western Council of Industrial Workers, whereby we agreed to review the marbled murrelet critical habitat designation and make any revisions deemed appropriate after a revised consideration of economic and any other relevant impacts of designation. On April 21, 2003, we published in the Federal Register a notice initiating a 5-year review of the marbled murrelet (68 FR 19569), and published a second information request for the 5-year review on July 25, 2003 (68 FR 44093). The 5-year review evaluation report was finished in March 2004 (McShane et al. 2004), and the 5-year review was completed on August 31, 2004.

On September 12, 2006, we published in the Federal Register a proposed revision to critical habitat for the marbled murrelet, which included adjustments to the original designation and proposed several exclusions under section 4(b)(2) of the Act (71 FR 53838). On June 26, 2007, we published in the Federal Register a document announcing the availability of a draft economic analysis (72 FR 35025) related to the September 12, 2006, proposed critical habitat revision (71 FR 53838). On March 6, 2008, we published a notice in the Federal Register (73 FR 12067) stating that the critical habitat for marbled murrelet should not be revised due to uncertainties regarding U.S. Bureau of Land Management (BLM) revisions to its District Resource Management Plans in western Oregon, and this notice fulfilled our obligations under the settlement agreement.

On July 31, 2008, we published in the Federal Register a proposed rule to revise currently designated critical habitat for the marbled murrelet by removing approximately 254,070 ac (102,820 ha) in northern California and Oregon from the 1996 designation (73 FR 44678). A second 5-year review was completed on June 12, 2009. On January 21, 2010, in response to a May 28, 2008, petition to delist the California/Oregon/Washington distinct population segment (DPS) of the marbled murrelet and our subsequent October 2, 2008, 90-day finding concluding that the petition presented substantial information (73 FR 57314), we published a 12-month finding notice in the Federal Register (75 FR 3424) determining that removing the marbled murrelet from the Federal List of Endangered and Threatened Wildlife (50 CFR 17.11) was not warranted. We also found that the Washington/Oregon/California population of the marbled murrelet is a valid DPS in accordance with the discreteness and significance criteria in our 1996 DPS policy (February 7, 1996; 61 FR 4722) and concluded that the DPS continues to meet the definition of a threatened species under the Act.

On October 5, 2011, we published in the Federal Register a final rule revising the critical habitat designation for the marbled murrelet (76 FR 61599). This final rule removed approximately 189,671 ac (76,757 ha) in northern California and southern Oregon from the 1996 designation, based on new information indicating these areas did not meet the definition of critical habitat for the marbled murrelet, resulting in a final revised designation of approx­i­mately 3,698,100 ac (1,497,000 ha) of critical habitat in Washington, Oregon, and California.

On January 24, 2012, AFRC filed suit against the Service to delist the marbled murrelet and vacate critical habitat. On March 30, 2013, the U.S. District Court for the District of Columbia granted in part AFRC's motion for summary judgment and denied a joint motion for vacatur of critical habitat pending completion of a voluntary remand. Following this ruling, the Service moved for a remand of the critical habitat rule, without vacatur, in light of recent case law setting more stringent requirements on the Service for specifying how designated areas meet the definition of critical habitat. On September 5, 2013, the district court ordered the voluntary remand without vacatur of the critical habitat rule, and set deadlines of September 30, 2015, for a proposed rule and September 30, 2016, for a final rule. The court ruled in favor of the Service regarding the Service's denial of plaintiffs' petition to delist the species, and that ruling was affirmed on appeal. See American Forest Resource Council v. Ashe, 946 F. Supp. 2d 1 (D.D.C. 2013), aff'd 2015 U.S. App. LEXIS 6205 (D.C. Cir., Feb. 27, 2015).

A final rule designating critical habitat for the marbled murrelet was published in the Federal Register on May 24, 1996 (61 FR 26256). A final rule revising the 1996 designation of critical habitat for the marbled murrelet was published in the Federal Register on October 5, 2011 (76 FR 61599). Both of these rules are available under the “Supporting Documents” section for this docket in the Federal eRulemaking Portal: http://www.regulations.gov at Docket Number FWS-R1-ES-2015-0070. It is our intent to discuss only those topics directly relevant to the 1996 and revised 2011 designations of critical habitat for the marbled murrelet. A complete description of the marbled murrelet, including a discussion of its life history, distribution, ecology, and habitat, can be found in the May 24, 1996, final rule (61 FR 26256) and the final recovery plan (USFWS 1997).

In this document, we are reconsidering the final rule designating critical habitat for the marbled murrelet (May 24, 1996; 61 FR 26256, as revised on October 5, 2011; 76 FR 61599). The current designation consists of approximately 3,698,100 ac (1,497,000 ha) of critical habitat in Washington, Oregon, and California. The critical habitat consists of 101 subunits: 37 in Washington, 33 in Oregon, and 31 in California. We are reconsidering the final rule for the purpose of evaluating whether all areas currently designated meet the definition of critical habitat under the Act. We describe and assess each of the elements of the definition of critical habitat, and evaluate whether these statutory criteria apply to the current designation of critical habitat for the marbled murrelet. In order to conduct this evaluation, here we present the following relevant information:

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) Essential to the conservation of the species, and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Under the first prong of the Act's definition of critical habitat in section 3(5)(a)(i), areas within the geographical area occupied by the species at the time it was listed may be included in critical habitat if they contain physical or biological features: (1) Which are essential to the conservation of the species; and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical and biological features within an area, we focus on the primary biological or physical constituent elements (primary constituent elements such as roost sites, nesting grounds, seasonal wetlands, water quality, tide, soil type) that are essential to the conservation of the species. Primary constituent elements (PCEs) are those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species.

Under the second prong of the Act's definition of critical habitat in section 3(5)(A)(ii), we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon the Secretary's determination that such areas are essential for the conservation of the species. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential for the conservation of the species and may be included in the critical habitat designation. In addition, if critical habitat is designated or revised subsequent to listing, we may designate areas as critical habitat that may currently be unoccupied but that were occupied at the time of listing. We designate critical habitat in areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.

Here we describe the physical or biological features essential to the conservation of the marbled murrelet, for the purpose of evaluating whether these features are present within the areas designated as critical habitat for this reconsideration of the final rule.

We identified the specific physical or biological features essential for the conservation of the marbled murrelet from studies of this species' habitat, ecology, and life history as described below. Additional information can be found in the final listing rule published in the Federal Register on October 1, 1992 (57 FR 45328), and the Recovery Plan for the Marbled Murrelet (USFWS 1997). In the 1996 final critical habitat rule (May 24, 1996; 61 FR 26256), we relied on the best available scientific information to describe the terrestrial habitat used for nesting by the marbled murrelet. For this 2015 rule reconsideration, the majority of the following information is taken directly from the 1996 final critical habitat rule, where the fundamental physical or biological features essential to the marbled murrelet as described therein remain valid (described in the section titled Ecological Considerations) (May 24, 1996; 61 FR 26256).

Where newer scientific information is available that refutes or validates the information presented in the 1996 final critical habitat rule, that information is provided here and is so noted. However, this proposed rule does not constitute a complete summary of all new scientific information on the biology of the marbled murrelet since 1996. Because this rule reconsideration addresses the 1996 final critical habitat, as revised in 2011 (October 5, 2011; 76 FR 61599), which designated critical habitat only in the terrestrial environment, the following section will solely focus on the terrestrial nesting habitat features. Forested areas with conditions that are capable of supporting nesting marbled murrelets are referred to as “suitable nesting habitat.” Loss of such nesting habitat was the primary basis for listing the marbled murrelet as threatened; hence protection of such habitat is essential to the conservation of the species. We consider the information provided here to represent the best available scientific data with regard to the physical or biological features essential for the marbled murrelet's use of terrestrial habitat.

Throughout the forested portion of the species' range, marbled murrelets typically nest in forested areas containing characteristics of older forests (Binford et al. 1975, p. 305; Quinlan and Hughes 1990, entire; Hamer and Cummins 1991, pp. 9-13; Kuletz 1991, p. 2; Singer et al. 1991, pp. 332-335; Singer et al. 1992, entire; Hamer et al. 1994, entire; Hamer and Nelson 1995, pp. 72-75; Ralph et al. 1995a, p. 4). The marbled murrelet population in Washington, Oregon, and California nests in most of the major types of coniferous forests (Hamer and Nelson 1995, p. 75) in the western portions of these states, wherever older forests remain inland of the coast. Although marbled murrelet nesting habitat characteristics may vary throughout the range of the species, some general habitat attributes are characteristic throughout its range, including the presence of nesting platforms, adequate canopy cover over the nest, landscape condition, and distance to the marine environment (Binford et al. 1975, pp. 315-316; Hamer and Nelson 1995, pp. 72-75; Ralph et al. 1995b, p. 4; McShane et al. 2004, p. 4-39).

Individual tree attributes that provide conditions suitable for nesting (i.e., provide a nesting platform) include large branches (ranging from 4 to 32 in (10 to 81 cm), with an average of 13 inches (in) (32 centimeters (cm)) in Washington, Oregon, and California) or forked branches, deformities (e.g., broken tops), dwarf mistletoe infections, witches' brooms, and growth of moss or other structures large enough to provide a platform for a nesting adult marbled murrelet (Hamer and Cummins 1991, p. 15; Singer et al. 1991, pp. 332-335; Singer et al. 1992, entire; Hamer and Nelson 1995, p. 79). These nesting platforms are generally located greater or equal to 33 feet (ft) (10 meters (m)) above ground (reviewed in Burger 2002, pp. 41-42 and McShane et al. 2004, pp. 4-55-4-56). These structures are typically found in old-growth and mature forests, but may be found in a variety of forest types including younger forests containing remnant large trees. Since 1996, research has confirmed that the presence of platforms is considered the most important characteristic of marbled murrelet nesting habitat (Nelson 1997, p. 6; reviewed in Burger 2002, pp. 40, 43; McShane et al. 2004, pp. 4-45-4-51, 4-53, 4-55, 4-56, 4-59; Huff et al. 2006, pp. 12-13, 18). Platform presence is more important than the size of the nest tree because tree size alone may not be a good indicator of the presence and abundance of platforms (Evans Mack et al. 2003, p. 3). Tree diameter and height can be positively correlated with the size and abundance of platforms, but the relationship may change depending on the variety of tree species and forest types marbled murrelets use for nesting (Huff et al. 2006, p. 12). Overall, nest trees in Washington, Oregon, and northern California have been greater than 19 in (48 cm) diameter at breast height (dbh) and greater than 98 ft (30 m) tall (Hamer and Nelson 1995, p. 81; Hamer and Meekins 1999, p. 10; Nelson and Wilson 2002, p. 27).

Northwestern forests and trees typically require 200 to 250 years to attain the attributes necessary to support marbled murrelet nesting, although characteristics of nesting habitat sometimes develop in younger coastal redwood (Sequoia sempervirens) and western hemlock (Tsuga heterophylla) forests. Forests with older residual trees remaining from previous forest stands may also develop into nesting habitat more quickly than those without residual trees. These remnant attributes can be products of fire, windstorms, or previous logging operations that did not remove all of the trees (Hansen et al. 1991, p. 383; McComb et al. 1993, pp. 32-36). Other factors that may affect the time required to develop suitable nesting habitat characteristics include site productivity and microclimate.

Through the 1995 nesting season, 59 active or previously used tree nests had been located in Washington (9 nests), Oregon (36 nests), and California (14 nests) (Hamer and Nelson 1995, pp. 70-71; Nelson and Wilson 2002, p. 134; Washington Department of Fish and Wildlife murrelet database; California Department of Fish and Game murrelet database). All of the nests for which data were available in 1996 in Washington, Oregon, and California were in large trees that were more than 32 in (81 cm) dbh (Hamer and Nelson 1995, p. 74). Of the 33 nests for which data were available, 73 percent were on a moss substrate and 27 percent were on litter, such as bark pieces, conifer needles, small twigs, or duff (Hamer and Nelson 1995, p. 74). The majority of nest platforms were created by large or deformed branches (Hamer and Nelson 1995, p. 79). Nests found subsequently have characteristics generally consistent with these tree diameter and platform sources (McShane et al. 2004, pp. 4-50 to 4-59; Bloxton and Raphael 2009, p. 8). However, in Oregon, nests were found in smaller diameter trees (as small as 19 in (49 cm)) that were distinguished by platforms provided by mistletoe infections (Nelson and Wilson 2002, p. 27). In Washington, one nest was found on a cliff (i.e., ground nest) that exhibited features similar to a tree platform, such as vertical and horizontal cover (Bloxton and Raphael 2009, pp. 8 and 33). In central California, nest platforms were located on large limbs and broken tops with 32.3 percent mean moss cover on nest limbs (Baker et al. 2006, p. 944).

More than 94 percent of the nests for which data were available in 1996 were in the top half of the nest trees, which may allow easy nest access and provide shelter from potential predators and weather. Canopy cover directly over the nests was typically high (average 84 percent; range 5 to 100 percent) in Washington, Oregon, and California (Hamer and Nelson 1995, p. 74). This cover may provide protection from predators and weather. Such canopy cover may be provided by trees adjacent to the nest tree, or by the nest tree itself. Canopy closure of the nest stand/site varied between 12 and 99 percent and averaged 48 percent (Hamer and Nelson 1995, p. 73). Information gathered subsequent to 1996 confirms that additional attributes of the platform are important including both vertical and horizontal cover and substrate. Known nest sites have platforms that are generally protected by branches above (vertical cover) or to the side (horizontal cover) (Huff et al. 2006, p. 14). Marbled murrelets appear to select limbs and platforms that provide protection from predation (Marzluff et al. 2000, p. 1135; Luginbuhl et al. 2001, p. 558; Raphael et al. 2002.a, pp. 226, 228) and inclement weather (Huff et al. 2006, p. 14). Substrate, such as moss, duff, or needles on the nest limb is important for protecting the egg and preventing it from falling (Huff et al. 2006, p. 13).

Nests have been located in forested areas dominated by coastal redwood, Douglas-fir (Pseudotsuga menziesii), mountain hemlock (Tsuga mertensiana), Sitka spruce (Picea sitchensis), western hemlock, and western red cedar (Thuja plicata) (Binford et al. 1975, p. 305; Quinlan and Hughes 1990, entire; Hamer and Cummins 1991, p. 15; Singer et al. 1991, p. 332, Singer et al. 1992, p. 2; Hamer and Nelson 1995, p. 75). Individual nests in Washington, Oregon, and California have been located in Douglas-fir, coastal redwood, western hemlock, western red cedar, and Sitka spruce trees (Hamer and Nelson 1995, p. 74).

For nesting habitat to be accessible to marbled murrelets, it must occur close enough to the marine environment for marbled murrelets to fly back and forth. The farthest inland distance for a site with nesting behavior detections is 52 mi (84 km) in Washington. The farthest known inland sites with nesting behavior detections in Oregon and California are 40 and 24 mi (65 and 39 km), respectively (Evans Mack et al. 2003, p. 4). Additionally, as noted below in the section titled Definition of Geographical Area Occupied at the Time of Listing, presence detections have been documented farther inland in Washington, Oregon, and California (Evans Mack et al. 2003, p. 4).

Prior to Euroamerican settlement in the Pacific Northwest, nesting habitat for the marbled murrelet was well distributed, particularly in the wetter portions of its range in Washington, Oregon, and California. This habitat was generally found in large, contiguous blocks of forest (Ripple 1994, p. 47) as described under the Management Considerations section of the 1996 final critical habitat rule (May 24, 1996; 61 FR 26256).

Areas where marbled murrelets are concentrated at sea during the breeding season are likely determined by a combination of terrestrial and marine conditions. However, nesting habitat appears to be the most important factor affecting marbled murrelet distribution and numbers. Marine survey data confirmed conclusions made in the supplemental proposed critical habitat rule (August 10, 1995; 60 FR 40892) that marine observations of marbled murrelets during the nesting season generally correspond to the largest remaining blocks of suitable forest nesting habitat (Nelson et al. 1992, p. 64; Varoujean et al. 1994, entire; Ralph et al. 1995b, pp. 5-6; Ralph and Miller 1995, p. 358).

Consistent with Varoujean et al.'s (1994) 1993 and 1994 aerial surveys, Thompson (1996, p. 11) found marbled murrelets to be more numerous along Washington's northern outer coast and less abundant along the southern coast. Thompson reported that this distribution appears to be correlated with: (1) Proximity of old-growth forest, (2) the distribution of rocky shoreline/substrate versus sandy shoreline/substrate, and (3) abundance of kelp (Thompson 1996, p. 11). In British Columbia Canada, Rodway et al. (1995, pp. 83, 85, 86) observed marbled murrelets aggregating on the water close to breeding areas at the beginning of the breeding season and, for one of their two study areas, again in July as young were fledging. Burger (1995, pp. 305-306) reported that the highest at-sea marbled murrelet densities in both 1991 and 1993 were seen immediately adjacent to two tracts of old-growth forest, while areas with very low densities of marbled murrelets were adjacent to heavily logged watersheds. More recent evidence supports that detections of marbled murrelets at inland sites and densities offshore were higher in or adjacent to areas with large patches of old-growth, and in areas of low fragmentation and low isolation of old-growth patches (Raphael et al. 1995, pp. 188-189; Burger 2002, p. 54; Meyer and Miller 2002, pp. 763-764; Meyer et al. 2002, pp. 109-112; Miller et al. 2002, p. 100; Raphael et al. 2002a, p. 221; Raphael et al. 2002b, p. 337). Overall, landscapes with detections indicative of nesting behavior tended to have large core areas of old-growth and low amounts of overall edge (Meyer and Miller 2002, pp. 763-764; Raphael et al. 2002b, p. 331).

In contrast, where nesting habitat is limited in southwest Washington, northwest Oregon, and portions of California, few marbled murrelets are found at sea during the nesting season (Ralph and Miller 1995, p. 358; Varoujean and Williams 1995, p. 336; Thompson 1996, p. 11). For instance, as of 1996, the area between the Olympic Peninsula in Washington and Tillamook County in Oregon (100 mi (160 km)) had few sites with detections indicative of nesting behavior or sightings at sea of marbled murrelets. In California, approximately 300 mi (480 km) separate the large breeding populations to the north in Humboldt and Del Norte Counties from the southern breeding population in San Mateo and Santa Cruz Counties. This reach contained few marbled murrelets during the breeding season; however, the area likely contained significant numbers of marbled murrelets before extensive logging (Paton and Ralph 1988, p. 11, Larsen 1991, pp. 15-17). More recent at-sea surveys confirm the low numbers of marbled murrelets in marine areas adjacent to inland areas that have limited nesting habitat (Miller et al. 2012, p. 775; Raphael et al. 2015, p. 21).

Dispersal mechanisms of marbled murrelets are not well understood; however, social interactions may play an important role. The presence of marbled murrelets in a forest stand may attract other pairs to currently unused habitat within the vicinity. This may be one of the reasons marbled murrelets have been observed in habitat not currently suitable for nesting, but in close proximity to known nesting sites (Hamer and Cummins 1990, p. 14; Hamer et al. 1994, entire). Although marbled murrelets appear to be solitary in their nesting habits (Nelson and Peck 1995, entire), they are frequently detected in groups above the forest, especially later in the breeding season (USFWS 1995, pp. 14-16). Two active nests discovered in Washington during 1990 were located within 150 ft (46 m) of each other (Hamer and Cummins 1990, p. 47), and two nests discovered in Oregon during 1994 were located within 100 ft (33 m) of each other (USFWS 1995, p. 14). Therefore, unused habitat in the vicinity of known nesting habitat may be more important for recovering the species than suitable habitat isolated from known nesting habitat (USFWS 1995; USFWS 1997, p. 20). Similarly, marbled murrelets are more likely to discover newly developing habitat in proximity to sites with documented nesting behaviors. Because the presence of marbled murrelets in a forest stand may attract other pairs to currently unused habitat within the vicinity, the potential use of these areas may depend on how close the new habitat is to known nesting habitat, as well as distance to the marine environment, population size, and other factors (McShane et al. 2004, p. 4-78).

Marbled murrelets are believed to be highly vulnerable to predation when on the nesting grounds, and the species has evolved a variety of morphological and behavioral characteristics indicative of selection pressures from predation (Ralph et al. 1995b, p. 13). For example, plumage and eggshells exhibit cryptic coloration, and adults fly to and from nests by indirect routes and often under low-light conditions (Nelson and Hamer 1995a, p. 66). Potential nest predators include the great horned owl (Bubo virginianus), Cooper's hawk (Accipiter cooperii), barred owl (Strix varia), northwestern crow (Corvus caurinus), American crow (Corvus brachyrhynchos), and gray jay (Perisoreus canadensis) (Nelson and Hamer 1995b, p. 93; Marzluff et al. 1996, p. 22; McShane et al. 2004, p. 2-17). The common raven (Corvus corax), Steller's jay (Cyanocitta stelleri), and sharp-shinned hawk (Accipiter striatus) are known predators of eggs or chicks (Nelson and Hamer 1995b, p. 93, McShane et al. 2004, pp. 2-16-2-17). Based on experimental work with artificial nests, predation on eggs and chicks by squirrels and mice may also occur (Luginbuhl et al. 2001, p. 563; Bradley and Marzluff 2003, pp. 1183-1184). In addition, a squirrel has been documented rolling a recently abandoned egg off a nest (Malt and Lank 2007, p. 170).

From 1974 through 1993, of those marbled murrelet nests in Washington, Oregon, and California where nest success or failure was documented, approximately 64 percent of the nests failed. Of those nests, 57 percent failed due to predation (Nelson and Hamer 1995b, p. 93). Continuing research further supports predation as a significant cause of nest failure (McShane et al. 2004, pp. 2-16 to 2-19; Peery et al. 2004, pp. 1093-1094; Hebert and Golightly 2006, pp. 98-99; Hebert and Golightly 2007, pp. 222-223; Malt and Lank 2007, p. 165). The relatively high predation rate could be biased because nests near forest edges may be more easily located by observers and also more susceptible to predation, and because observers may attract predators. However, Nelson and Hamer (1995b, p. 94) believed that researchers had minimal impacts on predation in most cases because the nests were monitored from a distance and relatively infrequently, and precautions were implemented to minimize predator attraction. More recent research has relied on remotely operated cameras for observing nests, rather than people, in order to reduce the possible effects of human attraction (Hebert and Golightly 2006, p. 12; Hebert and Golightly 2007, p. 222).

Several possible reasons exist for the high observed predation rates of marbled murrelet nests. One possibility is that these high predation rates are normal, although it is unlikely that a stable population could have been maintained historically under the predation rates observed (Beissinger 1995, p. 390).

In the 1996 rule we hypothesized that populations of marbled murrelet predators such as corvids (jays, crows, and ravens) and great horned owls are increasing in the western United States, largely in response to habitat changes and food sources provided by humans (Robbins et al. 1986, pp. 43-46; Johnson 1993, pp. 58-60; Marzluff et al. 1994, pp. 214-216; National Biological Service 1996, entire), resulting in increased predation rates on marbled murrelets. Subsequent to the 1996 rule, surveys have confirmed that corvid populations are indeed increasing in western North America as a result of land use and urbanization (Marzluff et al. 2001, pp. 332-333; McShane et al. 2004, pp. 6-11; Sauer et al. 2013, pp. 18-19). However, breeding bird surveys in North America indicate that great horned owls are declining in 40 percent of the areas included in the surveys (Sauer et al. 2013, p. 17). Barred owls (Strix varia), foraging generalists that may prey on marbled murrelets, were not considered in 1996, but have subsequently been shown to be significantly increasing in numbers and distribution (Sauer et al. 2013, p. 17).

In the 1996 rule, we also posited that creation of greater amounts of forest edge habitat may increase the vulnerability of marbled murrelet nests to predation and ultimately lead to higher rates of predation. Edge effects have been implicated in increased forest bird nest predation rates for other species of birds (Chasko and Gates 1982, pp. 21-23; Yahner and Scott 1988, p. 160). In a comprehensive review of the many studies on the potential relationship between forest fragmentation, edge, and adverse effects on forest nesting birds, Paton (1994, p. 25) concluded that “strong evidence exists that avian nest success declines near edges.” Small patches of habitat have a greater proportion of edge than do large patches of the same shape. However, many of the studies Paton (1994, entire) reviewed involved lands where forests and agricultural or urban areas interface, or they involved experiments with ground nests that are not readily applicable to canopy nesters such as marbled murrelets. Paton (1994, p. 25), therefore, stressed the need for studies specific to forests fragmented by timber harvest in the Pacific Northwest and elsewhere.

Some research on this topic has been conducted in areas dominated by timber production and using nests located off the ground (Ratti and Reese 1988, entire; Rudnicky and Hunter 1993, entire; Marzluff et al. 1996, entire; Vander Haegen and DeGraaf in press, entire). Vander Haegen and DeGraaf (in press, p. 8; 1996, pp. 175-176) found that nests in shrubs less than 75 m (246 ft) from an edge were three times as likely to be depredated than nests greater than 75 m (264 ft) from an edge. Likewise, Rudnicky and Hunter (1993, p. 360) found that shrub nests on the forest edge were depredated almost twice as much as shrub nests located in the forest interior. They also observed that shrub nests were taken primarily by avian predators such as crows and jays, which is consistent with the predators believed to be impacting marbled murrelets, while ground nests were taken by large mammals such as raccoons and skunks. Ratti and Reese (1988, entire) did not find the edge relationship documented by Rudnicky and Hunter (1993, entire), Vander Haegen and DeGraaf (in press), and others cited in Paton (1994, entire). However, Ratti and Reese (1988, p. 488) did observe lower rates of predation near “feathered” edges compared to “abrupt” edges (e.g., clearcut or field edges), and suggested that the vegetative complexity of the feathered edge may better simulate natural edge conditions than do abrupt edges. These authors also concluded that their observations were consistent with Gates and Gysel's (1978, p. 881) hypothesis that birds are poorly adapted to predator pressure near abrupt artificial edge zones.

Studies of artificial and natural nests conducted in Pacific Northwest forests also indicate that predation of forest bird nests may be affected by habitat fragmentation, forest management, and land development (Hansen et al. 1991, p. 388; Vega 1993, pp. 57-61; Bryant 1994, pp. 14-16; Nelson and Hamer 1995b, pp. 95-97; Marzluff et al. 1996, pp. 31-35). Nelson and Hamer (1995b, p. 96), found that successful marbled murrelet nests were further from edge than unsuccessful nests. Marzluff et al. (1996, entire) conducted experimental predation studies that used simulated marbled murrelet nests, and more recent research documented predation of artificial marbled murrelet nests by birds and arboreal mammals (Luginbuhl et al. 2001, pp. 562-563; Bradley and Marzluff 2003, pp. 1183-1884; Marzluff and Neatherlin 2006, p. 310; Malt and Lank 2007, p. 165). Additionally, more recent research indicates proximity to human activity and landscape contiguity may interact to determine rate of predation (Marzluff et al. 2000, pp. 1136-1138, Raphael et al. 2002a, entire; Zharikov et al. 2006, p. 117; Malt and Lank 2007, p. 165). Interior forest nests in contiguous stands far from human activity appear to experience the least predation (Marzluff et al. 1996, p. 29; Raphael et al. 2002a, pp. 229-231).

More recent information indicates that marbled murrelets locate their nests throughout forest stands and fragments, including along various types of natural and human-made edges (Hamer and Meekins 1999, p. 1; Manley 1999, p. 66; Bradley 2002, pp. 42, 44; Burger 2002, p. 48; Nelson and Wilson 2002, p. 98). In California and southern Oregon, areas with abundant numbers of marbled murrelets were farther from roads, occurred more often in parks protected from logging, and were less likely to occupy old-growth habitat if they were isolated (greater than 3 mi (5 km)) from other nesting marbled murrelets (Meyer et al. 2002, pp. 95, 102-103). Marbled murrelets no longer occur in areas without suitable forested habitat, and they appear to abandon highly fragmented areas over time (areas highly fragmented before the late 1980s generally did not support marbled murrelets by the early 1990s) (Meyer et al. 2002, p. 103).

The conversion of large tracts of native forest to small, isolated forest patches with large edge can create changes in microclimate, vegetation species, and predator-prey dynamics—such changes are often collectively referred to as “edge effects.” Unfragmented, older-aged forests have lower temperatures and solar radiation and higher humidity compared to clearcuts and other open areas (e.g., Chen et al. 1993, p. 219; Chen et al. 1995, p. 74). Edge habitat is also exposed to increased temperatures and light, high evaporative heat loss, increased wind, and decreased moisture. Fundamental changes in the microclimate of a stand have been recorded at least as far as 787 ft (240 m) from the forest edge (Chen et al. 1995, p. 74). The changes in microclimate regimes with forest fragmentation can stress an old-growth associate species, especially a cold-water adapted seabird such as the marbled murrelet (Meyer and Miller 2002, p. 764), and can affect the distribution of epiphytes that marbled murrelets use for nesting. Branch epiphytes or substrate have been identified as a key component of marbled murrelet nests (Nelson et al. 2003, p. 52; McShane et al. 2004, pp. 4-48, 4-89, 4-104). While there are no data on the specific effects of microclimate changes on the availability of marbled murrelet nesting habitat at the scale of branches and trees, as discussed in the references above, the penetration of solar radiation and warm temperatures into the forest could change the distribution of epiphytes, and wind could blow moss off nesting platforms.

A large body of research indicates that marbled murrelet productivity is greatest in large, complex-structured forests far from human activity due to the reduced levels of predation present in such landscapes. Marbled murrelet productivity is lowest in fragmented landscapes; therefore, marbled murrelet nesting stands may be more productive if surrounded by simple-structured forests, and minimal human recreation and settlement. Human activities can significantly compromise the effectiveness of the forested areas surrounding nests to protect the birds and/or eggs from predation (Huhta et al. 1998, p. 464; Marzluff et al. 1999, pp. 3-4; Marzluff and Restani 1999, pp. 7-9, 11; Marzluff et al. 2000, pp. 1136-1138; De Santo and Willson 2001, pp. 145-147; Raphael et al. 2002a, p. 221; Ripple et al. 2003, p. 80).

In addition to studies of edge effects, some research initiated prior to 1996 looked at the importance of stand size. Among all Pacific Northwest birds, the marbled murrelet is considered to be one of the most sensitive to forest fragmentation (Hansen and Urban 1992, p. 168). Marbled murrelet nest stand size in Washington, Oregon, and California varied between 7 and 2,717 ac (3 and 1,100 ha) and averaged 509 ac (206 ha) (Hamer and Nelson 1995, p. 73). Nelson and Hamer (1995b, p. 96) found that successful marbled murrelets tended to nest in larger stands than did unsuccessful marbled murrelets, but these results were not statistically significant. Miller and Ralph (1995, entire) compared marbled murrelet survey detection rates among four stand size classes in California. Recording a relatively consistent trend, they observed that a higher percentage of large stands (33.3 percent) had nesting behavior detections when compared to smaller stands (19.8 percent), while a greater percentage of the smallest stands (63.9 percent) had no presence or nesting behavior detections when compared to the largest stands (52.4 percent) (Miller and Ralph 1995, pp. 210-212). However, these results were not statistically significant, and the authors did not conclude that marbled murrelets preferentially select or use larger stands. The authors suggested the effects of stand size on marbled murrelet presence and use may be masked by other factors such as stand history and proximity of a stand to other old-growth stands. Rodway et al. (1993, p. 846) recommended caution when interpreting marbled murrelet detection data, such as that used by Miller and Ralph (1995), because numbers of detections at different sites may be affected by variation caused by weather, visibility, and temporal shifts.

In addition to stand size, general landscape condition may influence the degree to which marbled murrelets nest in an area. In Washington, marbled murrelet detections increased when old-growth/mature forests make up more than 30 percent of the landscape (Hamer and Cummins 1990, p. 43). Hamer and Cummins (1990, p. 43) found that detections of marbled murrelets decreased in Washington when the percentage of clear-cut/meadow in the landscape increased above 25 percent. Additionally, Raphael et al. (1995, p. 177) found that the percentage of old-growth forest and large sawtimber was significantly greater within 0.5 mi (0.8 km) of sites (501-ac (203-ha) circles) that were used by nesting marbled murrelets than at sites where they were not detected. Raphael et al. (1995, p. 189) suggested tentative guidelines based on this analysis that sites with 35 percent old-growth and large sawtimber in the landscape are more likely to be used for nesting. In California, Miller and Ralph (1995, pp. 210-211) found that the density of old-growth cover and the presence of coastal redwood were the strongest predictors of marbled murrelet presence.

In summary, the best scientific information available strongly suggests that marbled murrelet reproductive success may be adversely affected by forest fragmentation associated with either natural disturbances, such as severe fire or windthrow, or certain land management practices, generally associated with timber harvest or clearing of forest. Based on this information, the Service concluded that the maintenance and development of suitable habitat in relatively large contiguous blocks as described in the 1996 rule and the draft Marbled Murrelet (Washington, Oregon, and California Population) Recovery Plan (draft recovery plan) (USFWS 1995, pp. 70-71, finalized in 1997) would contribute to the recovery of the marbled murrelet. These blocks of habitat should contain the structural features and spatial heterogeneity naturally found at the landscape level, the stand level, and the individual tree level in Pacific Northwest forest ecosystems (Hansen et al. 1991, pp. 389-390; Hansen and Urban 1992, pp. 171-172; Ripple 1994, p. 48; Bunnell 1995, p. 641; Raphael et al. 1995, p. 189). Newer information further supports the conclusion that the maintenance of suitable nesting habitat in relatively large, contiguous blocks will be needed to recover the marbled murrelet (Meyer and Miller 2002, pp. 763-764; Meyer et al. 2002, p. 95; Miller et al. 2002, pp. 105-107; Raphael et al. 2011, p. 44).

Therefore, based on the information presented in the 1996 final critical habitat rule and more recent data that continue to confirm the conclusions drawn in that rule, we consider the physical or biological features essential to the conservation of the marbled murrelet to include forests that are capable of providing the characteristics required for successful nesting by marbled murrelets. Such forests are typically coniferous forests in contiguous stands with large core areas of old-growth or trees with old-growth characteristics and a low ratio of edge to interior. However, due to timber harvest history we recognize that, in some areas, such as south of Cape Mendocino in California, coniferous forests with relatively smaller core areas of old-growth or trees with old-growth characteristics are essential for the conservation of the marbled murrelet because they are all that remain on the landscape. Forests capable of providing for successful nesting throughout the range of the listed DPS are typically dominated by coastal redwood, Douglas-fir, mountain hemlock, Sitka spruce, western hemlock, or western red cedar, and must be within flight distance to marine foraging areas for marbled murrelets.

The most important characteristic of marbled murrelet nesting habitat is the presence of nest platforms. These structures are typically found in old-growth and mature forests, but can also be found in a variety of forest types including younger forests containing remnant large trees. Potential nesting areas may contain fewer than one suitable nesting tree per acre and nest trees may be scattered or clumped throughout the area. Large areas of unfragmented forest are necessary to minimize edge effects and reduce the impacts of nest predators to increase the probability of nest success. Forests are dynamic systems that occur on the landscape in a mosaic of successional stages, both as the result of natural disturbances (fire, windthrow) or anthropogenic management (timber harvest). On a landscape basis, forests with a canopy height of at least one-half the site-potential tree height in proximity to potential nest trees contribute to the conservation of the marbled murrelet. Trees of at least one-half the site-potential height are tall enough to reach up into the lower canopy of nest trees, which provides nesting murrelets more cover from predation. The site-potential tree height is the average maximum height for trees given the local growing conditions, and is based on species-specific site index tables. The earlier successional stages of forest also play an essential role in providing suitable nesting habitat for the marbled murrelet, as they proceed through successional stages and develop into the relatively large, unfragmented blocks of suitable nesting habitat needed for the conservation of the species.

According to 50 CFR 424.12(b), we are required to identify the physical or biological features essential to the conservation of the marbled murrelet within the geographical area occupied at the time of listing, focusing on the “primary constituent elements” (PCEs) of those features. We consider PCEs to be those specific elements of the physical or biological features that provide for a species' life-history processes and are essential to the conservation of the species. For the marbled murrelet, those life-history processes associated with terrestrial habitat are specifically related to nesting. Therefore, as previously described in our designation of critical habitat for the marbled murrelet (61 FR 26256; May 24, 1996), and further supported by more recent information, our designation of critical habitat focused on the following PCEs specific to the marbled murrelet:

(1) Individual trees with potential nesting platforms, and

(2) forested areas within 0.5 mile (0.8 kilometer) of individual trees with potential nesting platforms, and with a canopy height of at least one-half the site-potential tree height. This includes all such forest, regardless of contiguity.

These PCEs are essential to provide and support suitable nesting habitat for successful reproduction of the marbled murrelet.

In our evaluation of whether the current designation meets the statutory definition of critical habitat, we must assess not only whether the specific areas within the geographical area occupied by the species at the time of listing contain the physical or biological features essential to the conservation of the species, but also whether those features may require special management considerations or protection. Here we describe the special management considerations or protection that apply to the physical or biological features and PCEs identified for the marbled murrelet.

As discussed above and in the 1996 final rule designating critical habitat (May 24, 1996; 61 FR 26261-26263), marbled murrelets are found in forests containing a variety of forest structure, which is in part the result of varied management practices and natural disturbance (Hansen et al. 1991, p. 383; McComb et al. 1993, pp. 32-36). In many areas, management practices have resulted in fragmentation of the remaining older forests and creation of large areas of younger forests that have yet to develop habitat characteristics suitable for marbled murrelet nesting (Hansen et al. 1991, p. 387). Past and current forest management practices have also resulted in a forest age distribution skewed toward younger even-aged stands at a landscape scale (Hansen et al. 1991, p. 387; McComb et al. 1993, p. 31). Bolsinger and Waddell (1993, p. 2) estimated that old-growth forest in Washington, Oregon, and California had declined by two-thirds statewide during the previous five decades.

Current and historical loss of marbled murrelet nesting habitat is generally attributed to timber harvest and land conversion practices, although, in some areas, natural catastrophic disturbances such as forest fires have caused losses (Hansen et al. 1991, pp. 383, 387; Ripple 1994, p. 47; Bunnell 1995, pp. 638-639; Raphael et al. 2011, pp. 34-39; Raphael et al. 2015 in prep, pp. 94-96). Reduction of the remaining older forest has not been evenly distributed in western Washington, Oregon, and California. Timber harvest has been concentrated at lower elevations and in the Coast Ranges (Thomas et al. 1990, p. 63), generally overlapping the range of the marbled murrelet. In California today, more than 95 percent of the original old-growth redwood forest has been logged, and 95 percent of the remaining old-growth is now in parks or reserves (Roa 2007, p. 169).

Some of the forests that were affected by past natural disturbances, such as forest fires and wind throw, currently provide suitable nesting habitat for marbled murrelets because they retain scattered individual or clumps of large trees that provide structure for nesting (Hansen et al. 1991, 383; McComb et al. 1993, p. 31; Bunnell 1995, p. 640). This is particularly true in coastal Oregon where extensive fires occurred historically. Marbled murrelet nests have been found in remnant old-growth trees in mature and young forests in Oregon. Forests providing suitable nesting habitat and nest trees generally require 200 to 250 years to develop characteristics that supply adequate nest platforms for marbled murrelets. This time period may be shorter in redwood and western hemlock forests and in areas where significant remnants of the previous stand remain. Intensively managed forests in Washington, Oregon, and California have been managed on average cutting rotations of 70 to 120 years (USDI 1984, p. 10). Cutting rotations of 40 to 50 years are common for some private lands. Timber harvest strategies on Federal lands and some private lands have emphasized dispersed clear-cut patches and even-aged management. Forest lands that are intensively managed for wood fiber production are generally prevented from developing the characteristics required for marbled murrelet nesting. In addition, suitable nesting habitat that remains under these harvest patterns is highly fragmented.

Within the range of the marbled murrelet on Federal lands, the Northwest Forest Plan (NWFP) (USDA and USDI 1994, entire) designated a system of Late Successional Reserves (LSRs), which provides large areas expected to eventually develop into contiguous, unfragmented forest. In addition to LSRs, the NWFP designated a system of Adaptive Management Areas, where efforts focus on answering management questions, and matrix areas, where most forest production occurs. Administratively withdrawn lands, as described in the individual National Forest or BLM land use plans, are also part of the NWFP.

In the 1996 final rule, we acknowledged the value of implementation of the NWFP as an integral role in marbled murrelet conservation. As a result, designated critical habitat on lands within the NWFP area administered by the National Forests and BLM was congruent with LSRs. These areas, as managed under the NWFP, should develop into large blocks of suitable murrelet nesting habitat given sufficient time. However, LSRs are plan-level designations with less assurance of long-term persistence than areas designated by Congress. Designation of LSRs as critical habitat complements and supports the NWFP and helps to ensure persistence of this management directive over time. These lands managed under the NWFP require special management considerations or protection to allow the full development of the essential physical or biological features as represented by large blocks of forest with the old-growth characteristics that will provide suitable nesting habitat for marbled murrelets.

In some areas, the large blocks of Federal land under the NWFP are presently capable of providing the necessary contribution for recovery of the species. However, the marbled murrelet's range includes areas that are south of the range of the northern spotted owl (the focus of the NWFP), where Federal lands are subject to timber harvest. Therefore, the critical habitat designated on Federal lands outside of the NWFP also require special management considerations or protection to enhance or restore the old-growth characteristics required for nesting by marbled murrelets, and to attain the large blocks of contiguous habitat necessary to reduce edge effects and predation.

In the 1996 critical habitat rule (May 24, 1996; 61 FR 26256), the Service designated selected non-Federal lands that met the requirements identified in the Criteria for Identifying Critical Habitat section, in those areas where Federal lands alone were insufficient to provide suitable nesting habitat for the recovery of the species. For example, State lands were considered to be particularly important in southwestern Washington, northwestern Oregon, and in California south of Cape Mendocino. Small segments of county lands were also included in northwestern Oregon and central California. Some private lands were designated as critical habitat because they provided essential elements and occurred where Federal lands were, and continue to be, very limited, although suitable habitat on private land is typically much more limited than on public lands. In California, south of Cape Mendocino, State, county, city, and private lands contain the last remnants of nesting habitat for the southern-most population of murrelets, which is the smallest, most isolated, and most susceptible to extirpation. All of the non-Federal lands have been and continue to be subject to some amount of timber harvest and habitat fragmentation and lower habitat effectiveness due to human activity. Therefore, all non-Federal lands within the designation require special management considerations or protection to preserve suitable nesting habitat where it is already present, and to provide for the development of suitable nesting habitat in areas currently in early successional stages.

In summary, areas that provide the essential physical or biological features and PCEs for the marbled murrelet may require special management considerations or protection. Because succession has been set back or fragmentation has occurred due to either natural or anthropogenic disturbance, those essential features may require special management considerations or protections to promote the development of the large, contiguous blocks of unfragmented, undisturbed coniferous forest with old-growth characteristics (i.e., nest platforms) required by marbled murrelets. Areas with these characteristics provide the marbled murrelet with suitable nesting habitat, and reduce edge effects, such as increased predation, resulting in greater nest success for the species. Areas that currently provide suitable nesting habitat for the marbled murrelet may require protection to preserve those essential characteristics, as the development of old-growth characteristics may take hundreds of years and thus cannot be easily replaced once lost.

Critical habitat is defined as the specific areas within the geographical area occupied by the species, at the time it is listed under section (3)(5)(A)(i) of the Act. For the purposes of critical habitat, the Service must first determine what constitutes the geographical area occupied by the species at the time of listing. We consider this to be a relatively broad-scale determination, as the wording of the Act clearly indicates that the specific areas that constitute critical habitat will be found within some larger geographical area. We consider the “geographical area occupied by the species” at the time of listing, for the purposes of section 3(5)(A)(i), to be the area that may be broadly delineated around the occurrences of a species, or generally equivalent to what is commonly understood as the “range” of the species. We consider a species occurrence to be a particular location in which individuals of the species are found throughout all or part of their life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). Because the “geographical area occupied by the species” can, depending on the species at issue and the relevant data available, be defined on a relatively broad, coarse scale, individuals of the species may or may not be present within each area at a smaller scale within the geographical area occupied by the species. For the purposes of critical habitat, then, we consider an area to be “occupied” (within the geographical area occupied by the species) if it falls within the broader area delineated by the species' occurrences, i.e., its range.

Within the listed DPS, at-sea observations indicate marbled murrelets use the marine environment along the Pacific Coast from the British Columbia, Canada/Washington border south to the Mexico/California border. Because they must fly back and forth to the nest from their marine foraging areas, marbled murrelets use inland areas for nesting that are nearby to those areas used by the species offshore. The inland extent of terrestrial habitat use varies from north to south and depends upon the presence of nesting structures in relation to marine foraging areas. Marbled murrelets have been detected as far inland as 70 miles (mi) (113 kilometers (km)) in Washington, but the inland extent narrows going south, where marbled murrelets generally occur within 25 mi (40 km) of the coast in California. At a broad scale, the geographical area occupied by the listed DPS of the marbled murrelet at the time of listing includes the west coast from the British Columbia, Canada/Washington border south to the Mexico/California border, ranging inland from approximately 70 mi (113 km) in Washington to roughly 25 mi (40 km) of the coast in California. However, the inland nesting habitat extends southward in California only to just south of Monterey Bay. Occurrence data that supports this geographic range includes at-sea surveys, radar detections, radio-telemetry studies, and audio-visual surveys.

At the time the marbled murrelet was listed (October 1, 1992; 57 FR 45528), occurrence data were very limited. However, the geographic range was generally known at that time, with the exception of the exact inland extent.

We now describe what is known about marbled murrelet use of the critical habitat subunits that were designated in 1996, as revised in 2011. In 1996, only terrestrial areas were designated as critical habitat. Terrestrial habitat is used by the marbled murrelet only for the purpose of nesting; therefore, we focus on those specific areas used for nesting by the species. Because we did not designate critical habitat in the marine environment, that aspect of the species' life history or available data will not be discussed further, unless it is pertinent to the terrestrial habitat.

At the landscape scale, marbled murrelets show fidelity to marine foraging areas and may return to specific watersheds for nesting (Nelson 1997, pp. 13, 16-17, 20; Cam et al. 2003, p. 1123). For example, marbled murrelets have been observed to return to the same specific nest branches or sites (Hebert and Golightly 2006, p. 270; Bloxton and Raphael 2009, p. 11). Repeated surveys in nesting stands have revealed site tenacity similar to that of other birds in the alcid family (Huff et al. 2006, p. 12) in that marbled murrelets have been observed in the same suitable habitat areas for more than 20 years in California and Washington. Based on the high site tenacity exhibited by marbled murrelets, it is highly likely that areas found to be used by marbled murrelets since listing in 1992 were also being used at the time of listing. Therefore, in order to determine whether any particular area was being used at the time the marbled murrelet was listed, we used all years of survey data available to us (for example, through 2013 in Washington, and some data through 2014 for California).

Not all survey data are indicative of nesting. The specific types of data that we relied upon include audiovisual surveys and specific nest locations, which may have been located through radio-telemetry studies, tree climbing, chicks on the ground, or egg shell fragments. Audiovisual surveys result in a variety of detections, only some of which are specific indicators of nesting behavior tied to the area being surveyed. The types of behaviors that are indicative of nesting include: Sub-canopy behaviors, circling above the canopy, and stationary calling. Other types of detections, such as radar and fly-overs observed during audiovisual surveys, provide information regarding the general use of an area, but generally do not tie the observed individual(s) to a specific forested area (Evans Mack et al. 2003, pp. 20-23).

There continue to be gaps in our knowledge of marbled murrelet use in the terrestrial environment. Surveys are site/project specific and generally have been conducted for the purposes of allowing timber harvest. Surveys not conducted in adherence to the strict protocol may have missed nesting behaviors due to the cryptic nature of marbled murrelets and their nests. For example, a single visit to a location where marbled murrelets are present has only a 55 percent chance of detecting marbled murrelets (Evans Mack et al. 2003, p. 39). In addition, on some lands, such as Federal LSRs, our history of consultation under section 7 of the Act demonstrates that, in general, land managers choose not to conduct surveys to determine site “presence;” rather they consider the suitable habitat to be used by nesting murrelets and adjust their projects accordingly. Therefore, we recognize that our information regarding marbled murrelet use of the terrestrial landscape is incomplete; however, we have determined that the information used in this document is the best scientific data available.

We consider the geographical area occupied by the species at the time of listing for the purposes of critical habitat to be equivalent to the nesting range of the marbled murrelet, for the reasons described above. However, it is important to note that at the time of listing, we may not have had data that definitively demonstrated the presence of nesting murrelets within each specific area designated as critical habitat. Some of these areas still lack adequate survey information. Yet because these areas fall within the broader nesting range of the species, we consider them to have been occupied at the time of listing. For the purposes of clarity, we further evaluated the specific areas within that broader geographic range to determine whether we have documented detections of behaviors indicative of nesting by the marbled murrelet at the scale of each subunit. The following types of data are indicative of the marbled murrelet's use of forested areas for nesting and will be relied upon to make the determination of whether we have documentation of nesting behavior by critical habitat subunit:

(a) Data indicative of nesting behavior. A subunit with any of the following data will be considered to have a documented detection of nesting behavior. We consider one detection in a subunit sufficient to support a positive nesting behavior determination for the entire subunit.

(1) Audio/visual surveys conducted according to the Pacific Seabird Group (PSG) survey protocol (Evans Mack et al. 2003 or earlier versions). Detection types that are indicative of nesting include: Sub-canopy behaviors (such as flying through the canopy or landing), circling above the canopy, and stationary calling.

(2) Nest locations obtained through radio-telemetry tracking, tree climbing, egg-shell fragments, and chicks on the ground.

(b) Contiguity of forested areas within which nesting behaviors have been observed. According to the PSG protocol (Evans Mack et al. 2003), a contiguously forested area with detections indicative of nesting behavior is deemed to be used by nesting marbled murrelets throughout its entirety. Therefore, any subunits where there were no detections of behaviors indicative of nesting or possibly no surveys, but the forested areas in the subunit are contiguous with forested areas extending outside of the subunit within which there are documented nesting behaviors, will be deemed to be positive in terms of a nesting behavior detection.

Radar-based marbled murrelet detections and presence-only detections (such as flying over or heard only) resulting from audio/visual surveys were not used to classify a subunit as positive in terms of nesting behavior detections. Even though these detections indicate use of an area by marbled murrelets, these types of detections do not link murrelet nesting to specific areas of forested habitat.

In Washington and California, occurrence data, including nest locations and audio/visual survey data, are maintained in State wildlife agency databases. The Washington Department of Fish and Wildlife marbled murrelet data was obtained by the Service on June 19, 2014, and includes data collected through 2013. The California Department of Fish and Wildlife's marbled murrelet occurrence database, as currently maintained by the Arcata Fish and Wildlife Office, was accessed on February 5, 2015. The database includes information on some surveys conducted through 2006, with one observation from 2014, but is incomplete for the State. Audio/visual surveys in Oregon are not maintained in a centralized database. The Service, through a cooperative agreement, provided funds to the Oregon State University to obtain and collate Oregon survey data. The data provided to the Service included surveys through 2003, mainly on Federal lands. Additionally, the BLM and Oregon Department of Forestry provided a summary of current survey data, as of March of 2015, within critical habitat in Oregon. Survey data for private lands in Oregon were not available.

We have determined that all 101 subunits designated as critical habitat in 1996, as revised in 2011, are within the geographical range occupied by the species at the time of listing, and all 101 subunits contain the physical or biological features and PCEs essential to the conservation of the species. Evidence of the presence of PCEs is based on nests located within a subunit, nesting behavior detections, audio-visual survey station placements (generally surveys are only conducted if there are nesting platforms present in the forested area), and specific forest inventory data. All of these forms of evidence point to the presence of PCE 1, nesting platforms, within the subunit, as well as the presence of PCE 2. In addition, within all 101 subunits, the essential physical or biological features and PCEs may require special management considerations or protection, as described above, because these subunits have received or continue to receive some level of timber harvest, fragmentation of the forested landscape, and reduced habitat effectiveness from human activity. Therefore, all 101 subunits meet the definition of critical habitat under section 3(5)(A)(i) of the Act.

Of the 101 subunits, 78 (all critical habitat subunits except for those identified in Table 1, below) have either specific nesting behavior detection data within the subunit or forested areas within the subunit that are contiguous with forested areas within which nesting behaviors have been observed. In total, the 78 subunits with nesting behavior detections account for 3,335,400 ac (1,349,800 ha), or 90 percent of the total designation. These 78 subunits all contain the physical or biological features and PCEs essential to the conservation of the species, which may require special management considerations or protection, as described above, because these subunits have received or continue to receive some level of timber harvest, fragmentation of the forested landscape, and reduced habitat effectiveness from human activity. Therefore, we conclude that these 78 subunits meet the definition of critical habitat under section 3(5)(A)(i) of the Act.

There are 23 subunits that did not have data indicating marbled murrelet nesting behaviors at the time of listing (Table 1). All of these subunits, however, are within the range of the species at the time of listing, and, hence, we consider them to be occupied. Of these 23 subunits, 2 are in Washington, 5 are in Oregon, and 16 are in California, totaling up to 362,600 ac (145,800 ha) or 10 percent of the designation. We have determined that all 23 subunits contain the essential physical or biological features and PCEs based on specific forest inventory data and audio-visual survey station placements. Only 7 of these 23 subunits have received partial or complete surveys to determine use by marbled murrelets. Very limited inland distribution information was available when the species was listed (1992) and in 1996 when critical habitat was designated (May 24, 1996; 61 FR 26256, pp. 26269-26270). However, continued survey efforts have filled in gaps in the distribution that were not known at the time of listing. For example, as of June 2014, the Washington Department of Fish and Wildlife murrelet detection database contained 5,225 nesting behavior detections. Of these 5,225 detections, only 254 were from surveys before 1992 and only 2,149 were prior to 1996. Therefore, it is our opinion that had surveys been conducted in many of these 23 subunits, it is likely that nesting behaviors would have been detected.

Even if these 23 subunits were considered unoccupied at the time of listing because we do not have specific documentation of nesting behaviors, the Act permits designation of such areas as critical habitat if they are essential for the conservation of the species. We evaluated whether each of these 23 subunits are essential for the conservation of the species. In this evaluation we considered: (1) The importance of the area to the future recovery of the species; (2) whether the areas have or are capable of providing the essential physical or biological features; and (3) whether the areas provide connectivity between marine and terrestrial habitats. As stated above, we determined that all 23 subunits contain the physical or biological features and PCEs for the marbled murrelet; therefore, all 23 subunits provide essential nesting habitat that is currently limited on the landscape. In particular, 13 subunits in California that are south of Cape Mendocino contain the last remnants of nesting habitat in that part of California. All 101 designated subunits work together to create a distribution of essential nesting habitat from north to south and inland from marine foraging areas. All of the designated critical habitat units occur within areas identified in the draft and final recovery plans for the marbled murrelet (USFWS 1995 and 1997, entire) as essential for the conservation of the species. Maintaining and increasing suitable nesting habitat for the marbled murrelet is a key objective for the conservation and recovery of the species, by providing for increases in nest success and productivity needed to attain long-term population viability. Based upon this information, we have determined that all of the 23 subunits where nesting behaviors have not been documented are, nonetheless, essential for the conservation of the species. Therefore, even if these 23 subunits were considered unoccupied, we conclude that they meet the definition of critical habitat under section 3(5)(A)(ii) of the Act.

As described above, all areas designated as critical habitat for the marbled murrelet (101 subunits) contain the physical or biological features and PCEs essential to the conservation of the species, which may require special management considerations or protection. We recognize that the physical or biological features and PCEs may not be uniformly distributed throughout these 101 subunits because historical harvest patterns and natural disturbances have created a mosaic of multiple-aged forests. Replacement of essential physical or biological features and PCEs for the marbled murrelet can take centuries to grow.

We have additionally evaluated all currently designated critical habitat for the marbled murrelet applying the standard under section 3(5)(A)(ii) of the Act, and have determined that all 101 subunits included in this designation are essential for the conservation of the species. As detailed above, we have determined that all areas of critical habitat, whether known to be occupied at the time of listing or not, contain the physical or biological features and PCEs for the marbled murrelet. All 101 designated subunits work together to create a distribution of essential nesting habitat from north to south and inland from marine foraging areas, and occur within areas identified in the draft and final recovery plans for the marbled murrelet (USFWS 1995 and 1997, entire) as essential for the conservation of the species. All areas designated as critical habitat are essential for the conservation and recovery of the marbled murrelet by maintaining and increasing suitable nesting habitat and limiting forest fragmentation, thereby providing for increases in nest success and productivity to attain long-term population viability of the species. Therefore, we have determined that all areas currently identified as critical habitat for the marbled murrelet, whether confirmed to be occupied at the time of listing or not, are essential for the conservation of the species and meet the definition of critical habitat under section 3(5)(A)(ii) of the Act. Recent population and suitable habitat research confirms that these areas continue to be essential because the marbled murrelet population has declined since listing (Miller et al. 2012, entire) and continues to decline in Washington (Lance and Pearson 2015, pp. 4-5), hence suitable nesting areas are of increased importance to provide recovery potential for the marbled murrelet. In addition, while habitat loss has slowed since adoption of the NWFP, suitable nesting habitat continues to be lost to timber harvest (Raphael et al. 2015 in prep, pp. 94-95).

The preamble to the 1996 final critical habitat rule (May 24, 1996; 61 FR 26265) stated that within the boundaries of designated critical habitat, only those areas that contain one or more PCEs are, by definition, critical habitat, and areas without any PCEs are excluded by definition. This statement was in error; we clarified this language in the revised critical habitat rule published in 2011 (October 5, 2011; 76 FR 61599, p. 61604), and we reemphasize this correction here. By introducing some ambiguity in our delineation of critical habitat, this language was inconsistent with the requirement that each critical habitat unit be delineated by specific limits using reference points and lines (50 CFR 424.12(c)). The Service does its best not to include areas that obviously cannot attain PCEs, such as alpine areas, water bodies, serpentine meadows, lava flows, airports, buildings, parking lots, etc. (May 24, 1996; 61 FR 26256, p. 26269). However, the scale at which mapping is done for publication in the Code of Federal Regulations does not allow precise identification of these features, and, therefore, some may fall within the critical habitat boundaries. Hence, all lands within the mapped critical habitat boundaries for the marbled murrelet are critical habitat.

Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. A detailed explanation of the regulatory effects of critical habitat in terms of consultation under section 7 of the Act and application of the adverse modification standard is provided in the October 5, 2011, final rule revising critical habitat for the marbled murrelet (76 FR 61599).

Section 7 consultation is required whenever there is a discretionary Federal action that may affect listed species or designated critical habitat. Section 7(a)(3) also states that a Federal agency shall consult with the Secretary on any prospective agency action at the request of, and in cooperation with, the prospective permit or license applicant if the applicant has reason to believe that an endangered species or a threatened species may be present in the area affected by his or her project and that implementation of such action will likely affect such species. The initiation of section 7 consultation under the jeopardy standard takes place if the species may be present and the action may affect the species. As described above, because of the relatively coarse scale at which critical habitat is designated, the species may or may not be present within all portions of the “geographical area occupied by the species” or may be present only periodically. Therefore, at the time of any consultation under section 7 of the Act, the species of interest may not be present within the action area for the purposes of the section 7 consultation, even if that action area is within the “geographical area occupied by the species.”

We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation or revision of critical habitat. If critical habitat has not been previously designated, the probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both “with critical habitat” and “without critical habitat.” The “without critical habitat” scenario represents the baseline for the analysis, and includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (e.g., under the Federal listing as well as other Federal, State, and local regulations). In this case the baseline represents the costs of all efforts attributable to the listing of the species under the Act (i.e., conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. These are the conservation efforts and associated impacts that would not be expected but for the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These incremental costs represent the potential economic impacts we consider in association with a designation or revision of critical habitat, as required by the Act.

Baseline protections as a result of the listed status of the marbled murrelet include sections 7, 9, and 10 of the Act, and any economic impacts resulting from these protections to the extent they are expected to occur absent the designation of critical habitat:

• Section 7 of the Act, even absent critical habitat designation, requires Federal agencies to consult with the Service to ensure that any action authorized, funded, or carried out will not likely jeopardize the continued existence of any endangered or threatened species. Consultations under the jeopardy standard result in administrative costs, as well as impacts of conservation efforts resulting from consideration of this standard.

• Section 9 defines the actions that are prohibited by the Act. In particular, it prohibits the “take” of endangered wildlife, where “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The economic impacts associated with this section manifest themselves in sections 7 and 10.

• Under section 10(a)(1)(B) of the Act, an entity (e.g., a landowner or local government) may develop an HCP for a listed animal species in order to meet the conditions for issuance of an incidental take permit in connection with a land or water use activity or project. The requirements posed by the HCP may have economic impacts associated with the goal of ensuring that the effects of incidental take are adequately avoided or minimized. The development and implementation of HCPs is considered a baseline protection for the species and habitat unless the HCP is determined to be precipitated by the designation of critical habitat, or the designation influences stipulated conservation efforts under HCPs.

In the present rulemaking, we are not starting from a “without critical habitat” baseline. In this particular case, critical habitat has been in place for the marbled murrelet since May 24, 1996 (61 FR 26256), and was most recently revised on October 5, 2011 (76 FR 61599). Since the 2011 revision resulted only in the removal of some areas of critical habitat, all areas remaining in the current designation have been critical habitat for the marbled murrelet since 1996. This current critical habitat designation forms the baseline for our consideration of the potential economic impacts of this proposed rule. In this document, we describe our evaluation and conclusion that all of the currently designated areas meet the statutory definition of critical habitat for the marbled murrelet. Specifically, we have clarified that all areas are within the range of the marbled murrelet and, therefore, occupied by the species at the time of listing, and contain the physical or biological features essential to the conservation of the species, which may require special management consideration or protection. Furthermore, although all areas are considered to have been occupied at the time of listing, all areas do not necessarily have specific data indicating known detections of nesting murrelets at the time of listing. Therefore, we have further evaluated and determined that all critical habitat, regardless of whether we have information indicating definitive use by nesting murrelets at the time of listing, is essential for the conservation of the species. As a result of our evaluation, we are not proposing any modification to the boundaries of critical habitat for the marbled murrelet, nor are we proposing any changes to the definition of the PCEs (May 24, 1996; 61 FR 26256).

We have considered the probable incremental economic impacts that may result from this proposed rule with regard to critical habitat for the marbled murrelet. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the marbled murrelet is present, Federal agencies already are required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. In this particular case, because all areas that we have considered are already designated as critical habitat for the marbled murrelet, where a Federal nexus occurs, consultations to avoid the destruction or adverse modification of critical habitat have been incorporated into the existing consultation process. Federal agencies have been consulting under section 7 of the Act on critical habitat for the marbled murrelet for approximately 20 years. As this proposed rule does not suggest the addition of any new areas as critical habitat, any probable economic impacts resulting from this rulemaking would result solely from our clarification of how all of the areas currently designated meet the statutory definition of critical habitat. The incremental economic impacts of this proposed rule would, therefore, be equal to any additional costs incurred as the result of a difference between the outcome of consultations as they are currently conducted and consultations as they would be conducted if this rulemaking is finalized as proposed.

We fully considered any probable economic impacts that may result from this proposed rule. Based upon our evaluation, we do not anticipate changes to the consultation process or effect determinations made for critical habitat as a result of our evaluation and conclusion that all areas meet the definition of critical habitat under the Act. In addition, we do not anticipate requiring additional or different project modifications than are currently requested when an action “may affect” critical habitat. Therefore, it is the Service's expectation that this proposed rule clarifying the 1996 critical habitat designation, as revised in 2011, which explains how all areas within the boundaries of the current designation meet the definition of critical habitat under the Act, will result in no additional (incremental) economic impacts.

In order to confirm that our assessment of the potential economic impacts of this proposed rule is accurate, we asked those Federal action agencies that manage lands that are critical habitat or with whom we have consulted over the past 20 years on marbled murrelet critical habitat to review our evaluation and characterization of the changes, if any, to consultation under section 7 that may be anticipated as a consequence of this proposed rule. We specifically asked each agency whether our proposed rule would be likely to result in any additional economic impacts on their agency (incremental impacts), above and beyond those already incurred as a result of the current critical habitat designation for the marbled murrelet (baseline impacts). Based on our consultation history with Federal agencies, it is our understanding that action agencies currently consult on effects to marbled murrelet critical habitat through an analysis of the effects to the PCEs. We asked the action agencies to confirm or correct this understanding, and to verify our characterization of how these consultations take place under the current designation, which we described as follows:

• If an action will take place within designated critical habitat, the action agency considers the action area to be critical habitat, irrelevant of the presence of PCEs. The action agency then determines whether there are PCEs within the action area. If the action agency determines there are no PCEs within the action area, the agency makes a “no effect” determination and the Service is not consulted.

• If the action agency determines there are PCEs within the action area, they analyze the action's potential effects on the PCEs, which may result in a “no effect” or “may effect” determination. If the action agency determines the action “may affect” the PCEs, they undergo section 7 consultation with the Service.

Whether the critical habitat subunit or action area is considered to be “occupied” by the species is irrelevant to the effect determination made for critical habitat. Rather, the determination of “occupancy” is relevant to the effect determination for the species and any minimization measures that may be implemented (such as project timing).

In this proposed rule we have reconsidered and clarified that we consider all areas to have been occupied by the species at the time of listing, and that all of these areas have the PCEs. Because occupancy of the critical habitat subunit or action area is considered irrelevant to the effect determination made for critical habitat, the Service does not anticipate changes to the consultation process or effect determinations made for critical habitat as a result of this determination. In addition, the Service does not anticipate requiring additional or different project modifications than are currently requested when an action “may affect” critical habitat. Therefore, it is the Service's expectation that the proposed rule clarifying the 1996 critical habitat designation [sic: as revised in 2011], which will clearly explain how all areas within the boundaries of the current designation meet the definition of critical habitat under the Act, will not result in additional (incremental) costs to the Federal agencies.

We solicited review and comment on our draft summary of the anticipated economic impacts of this proposed rule, as described above, from seven Federal agencies with whom we regularly consult on marbled murrelet critical habitat (the U.S. Forest Service (USFS), U.S. Bureau of Land Management (BLM), National Park Service (NPS), Bureau of Indian Affairs (BIA), U.S. Army Corps of Engineers (Corps), Federal Highway Administration (FHA), and Federal Energy Regulatory Commission (FERC)). We received responses from four of these agencies: the USFS representing multiple national forests, the BLM representing multiple districts, the NPS representing Redwood National Park and State Parks partnership, and the BIA. All responses agreed with our evaluation of the potential incremental effects of the proposed rule, and confirmed that they did not anticipate any additional costs as a result of the clarification of areas occupied at the time of listing. Our initial letter of inquiry and all responses received from the action agencies are available for review in the Supplemental Materials folder at http://www.regulations.gov, Docket No. FWS-R1-ES-2015-0070.

We additionally considered any potential economic impacts on non-Federal entities as a result of this proposed rule. In our experience, any economic impacts to non-Federal parties are generally associated with the development of HCPs under section 10(a)(1)(B) of the Act. However, as described above, in most cases the incentive for the development of an HCP is the potential issuance of an incidental take permit in connection with an activity or project in an area where a listed animal species occurs. HCPs are seldom undertaken in response to a critical habitat designation, but in such a case the costs associated with the development of an HCP prompted by the designation of critical habitat would be considered an incremental impact of that designation. In this particular situation, because we are not proposing any changes to the boundaries of critical habitat, we do not anticipate the initiation of any new HCPs in response to this proposed rule; therefore, we do not anticipate any costs to non-Federal parties associated with HCP development.

Other potential costs to non-Federal entities as a result of critical habitat designation might include costs to third party private applicants in association with Federal activities. In most cases, consultations under section 7 of the Act involve only the Service and other Federal agencies, such as the U.S. Army Corps of Engineers. Sometimes, however, consultations may include a third party involved in projects that involve a permitted entity, such as the recipient of a Clean Water Act section 404 permit. In such cases, these private parties may incur some costs, such as the cost of applying for the permit in question, or the time spent gathering and providing information for a permit. These costs and administrative effort on the part of third party applicants, if attributable solely to critical habitat, would be incremental impacts of the designation. In this particular case, however, because we are not proposing any boundary changes to the current critical habitat designation, we do not anticipate any change from the current baseline conditions in terms of potential costs to third parties; therefore, we expect any incremental impacts to non-Federal parties associated with this proposed rule to be minimal.

Based on our evaluation and the information provided to us by the Federal action agencies within the critical habitat area under consideration, we conclude that this proposed rule will result in little if any additional economic impacts above baseline costs, and we seek public input on this conclusion.

We have examined all areas designated as critical habitat for the marbled murrelet in 1996 (May 24, 1996; 61 FR 26256), as revised in 2011 (October 5, 2011; 76 FR 61599), and evaluated whether all areas meet the definition of critical habitat under section 3(5)(A) of the Act. Based upon our evaluation, we have determined that all 101 subunits designated as critical habitat are within the geographical area occupied by the species at the time of listing, and each of these subunits provide the physical or biological features and PCEs essential to the conservation of the species, which may require special management considerations or protections. Therefore, we conclude that all areas designated as critical habitat for the marbled murrelet meet the definition of critical habitat under section 3(5)(A)(i) of the Act. Of the 101 subunits, 78 of those subunits had documented detections of nesting behavior at the time of listing. We have determined that we do not have sufficient data to definitively document nesting behavior within the other 23 subunits at the time of listing. However, even if these 23 subunits were considered unoccupied, the Secretary has determined that they are essential for the conservation of the species, as they contribute to the maintenance or increase of suitable nesting habitat required to achieve the conservation and recovery of the marbled murrelet; therefore, we conclude that they meet the definition of critical habitat under section 3(5)(A)(ii) of the Act.

In addition, recognizing that the detection of nesting behaviors or the presence of essential physical or biological features or PCEs within a subunit may be evaluated on multiple scales, such that at some finer scales some subset of the subunit may be considered unoccupied or lacking in PCEs, we evaluated the designation in its entirety as if it were unoccupied under section 3(5)(A)(ii) of the Act, and found that all areas of critical habitat are essential for the conservation of the species. We have here clarified that we have evaluated all critical habitat for the marbled murrelet, and have concluded that in all cases the areas designated as critical habitat for the marbled murrelet meet the definition of critical habitat under section 3(5)(A) of the Act. In addition, as required by section 4(b)(2) of the Act, we have considered the potential economic impact of this clarification, and we have concluded that any potential economic effects resulting from this rulemaking are negligible.

Therefore, we conclude that, under the Act, critical habitat as currently designated for the marbled murrelet in the Code of Federal Regulations remains valid, and we seek public input on this determination.

Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register. Such requests must be sent to the address shown in the ADDRESSES section. We will schedule public hearings on this proposal, if any are requested, and announce the dates, times, and places of those hearings, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

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

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the Agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies will be directly regulated by this designation. Moreover, Federal agencies are not small entities. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that, if promulgated, this determination of critical habitat will not have a significant economic impact on a substantial number of small entities.

In summary, we have considered whether this proposed rule would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed determination of critical habitat would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain action. In our consideration of potential economic impacts, we did not find that this rule clarification will significantly affect energy supplies, distribution, or use. This proposed rule only clarifies how the designated critical habitat meets the definition of critical habitat under the Act, and does not propose any changes to the boundaries of the current critical habitat. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following findings:

(1) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments.

(2) We do not believe that this rule will significantly or uniquely affect small governments because this proposed rule only clarifies how the designated critical habitat meets the definition of critical habitat under the Act, and does not propose any changes to the boundaries of the current critical habitat, therefore, landownership within critical habitat does not change. Therefore, a Small Government Agency Plan is not required.

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we analyzed the potential takings implications of this proposed determination of critical habitat for the marbled murrelet. This proposed rule clarifies whether and how the designated critical habitat meets the definition of critical habitat under the Act, and does not propose any changes to the boundaries of the current critical habitat, therefore, landownership within critical habitat does not change. Thus, we conclude that this proposed rule does not pose additional takings implications for lands within or affected by the original 1996 designation. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. Therefore, based on the best available information, as described above, we conclude that this proposed determination of critical habitat for the marbled murrelet does not pose significant takings implications.

In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A Federalism assessment is not required. From a Federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The designation may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical and biological features of the habitat necessary to the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist these local governments in long-range planning (because these local governments no longer have to wait for case-by-case section 7 consultations to occur).

Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. In our proposal, we have reconsidered designated critical habitat for the marbled murrelet for the purpose of assessing whether all of the areas meet the statutory definition of critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, the proposed rule identifies the elements of physical or biological features essential to the conservation of the marbled murrelet.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.

There are no tribal lands designated as critical habitat for the marbled murrelet.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(1) Be logically organized;

(2) Use the active voice to address readers directly;

(3) Use clear language rather than jargon;

(4) Be divided into short sections and sentences; and

(5) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

A complete list of all references cited in this rule is available on the Internet at http://www.regulations.gov. In addition, a complete list of all references cited herein, as well as others, is available upon request from the Washington Fish and Wildlife Office (see ADDRESSES).

The primary authors of this document are the staff members of the Washington Fish and Wildlife Office, U.S. Fish and Wildlife Service (see ADDRESSES).

The authority for this action is the Endangered Species Act of 1977, as amended (16 U.S.C. 1531 et seq.).

The shrimp fishery in the Gulf is managed under the FMP. The FMP was prepared by the Council and implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

This proposed rule would revise the FMP framework procedures at § 622.60(a) and (b) to allow for modification of accountability measures under the standard documentation process of the open framework procedure. Framework procedures for a FMP allow for changes in specific management measures and parameters that can be made more efficiently than changes made through a FMP plan amendment. This framework procedure was first implemented in the Generic Annual Catch Limit (ACL) Amendment (76 FR 82044, December 29, 2011). Also, this proposed rule would remove outdated terminology from the regulations, such as “total allowable catch,” and remove the phrase “transfer at sea provisions” from the list of framework procedures because this phrase was inadvertently included in the final rule for the Generic ACL Amendment (76 FR 82044, December 29, 2011).

Amendment 15 also contains actions that are not being codified in the regulations, but guide the Council and NMFS in establishing other management measures, which are codifed. Amendment 15 would revise the MSY, overfishing threshold, and the overfished threshold definitions and values for penaeid shrimp stocks (brown, white, and pink shrimp). MSY is the largest average catch that can continuously be taken from a stock under existing environmental conditions. Overfishing occurs whenever the rate of removal is too high and jeopardizes the capacity of a stock or stock complex to produce the MSY on a continuing basis. A stock or stock complex is considered overfished when its biomass has declined below the capacity of the stock or stock complex to produce MSY on a continuing basis.

The criteria and values for MSY, overfishing threshold, and overfished threshold for penaeid shrimp were established in Amendment 13 to the FMP (71 FR 56039, September 26, 2006). Historically, Gulf penaeid shrimp stocks were assessed with a virtual population analysis (VPA), which reported output in terms of number of parents. However, the 2007 pink shrimp stock assessment VPA incorrectly determined pink shrimp were undergoing overfishing because the model could not accommodate low effort. In 2009, NMFS stock assessment analysts determined that the stock synthesis model was the best choice for modeling Gulf shrimp populations. Amendment 15 would modify these stock status determination criteria to match the biomass-based output of the stock synthesis model, which was deemed a better assessment model for shrimp by NMFS biologists and the Council's Scientific and Statistical Committee. These revisions to the penaeid shrimp stock status criteria are expected to have little to no change in the biological, physical, or ecological environments because these changes are only to the stock status reference points and will not have a direct impact on the actual harvest of penaeid shrimp.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with Amendment 15, the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:

A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble and in the SUMMARY section of the preamble. The Magnuson-Stevens Act provides the basis for this proposed rule.

This proposed rule is expected to directly affect commercial fishermen holding valid or renewable Federal Gulf shrimp permits. The SBA established size criteria for all major industry sectors in the U.S. including fish harvesters and for-hire operations. A business involved in shellfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts are not in excess of $5.5 million (NAICS code 114112, shellfish fishing) for all of its affiliated operations worldwide.

The Federal shrimp permit for the commercial harvest of penaeid shrimp in the Gulf exclusive economic zone has been under a moratorium since 2007 (71 FR 56039, September 26, 2006). At the start of the moratorium, 1,933 vessels qualified for and received the Federal shrimp permit. Over time, the number of permitted shrimp vessels has declined, and in 2013 there were 1,546 such permitted vessels.

From 2006 through 2012, an average of 4,757 vessels fished for shrimp in the Gulf, of which 27 percent were federally permitted vessels and the rest, non-federally permitted vessels that fished only in state waters. Despite the fewer number of vessels, federally permitted vessels accounted for an average of 67 percent of total shrimp landings and 77 percent of total ex-vessel revenues. A federally permitted vessel in the Gulf shrimp fishery, on average, generated revenues from commercial fishing of approximately $254,000 (2012 dollars) annually.

Based on the revenue figures above, all vessels expected to be directly affected by this proposed rule are determined for the purpose of this analysis to be small business entities.

The modifications to the MSY, overfishing threshold, and overfished threshold definitions and values for penaeid shrimp in Amendment 15 would make these parameters consistent with the model currently used in the stock assessment for penaeid shrimp species. Because modifications of these parameters would not affect the harvest of shrimp or restrict the operations of shrimp vessels, no direct economic effects would ensue from this action within the amendment.

The proposed regulatory change to allow for modification of accountability measures under the standard documentation process of the open framework procedure would streamline the process for changing certain regulations affecting the shrimp fishery. This action would improve the administrative environment of developing regulations for the shrimp fishery, but would have no direct economic effects on the operations of affected shrimp vessels. This rule would also remove outdated terminology from the regulations, such as “total allowable catch,” and remove the phrase “transfer at sea provisions” from the list of framework procedures to correct an inadvertent error. Both these change would have no direct economic effects on the operations of affected shrimp vessels. Therefore, it is expected that the measures contained in this proposed rule would have no effects on the profits of any affected shrimp vessels.

No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this proposed rule. Accordingly, this rule does not implicate the Paperwork Reduction Act.

The information provided above supports a determination that this rule, if implemented, would not have a significant economic impact on a substantial number of small entities. Because of this determination, an initial regulatory flexibility analysis is not required and none has been prepared.

For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows:

In the 2015 annual management measures for ocean salmon fisheries (80 FR 25611, May 5, 2015), NMFS announced the commercial and recreational fisheries in the area from the U.S./Canada border to the U.S./Mexico border, beginning May 1, 2015, and 2016 salmon fisheries opening earlier than May 1, 2016. NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Inseason actions in the salmon fishery may be taken directly by NMFS (50 CFR 660.409(a)—Fixed inseason management provisions) or upon consultation with the Pacific Fishery Management Council (Council) and the appropriate State Directors (50 CFR 660.409(b)—Flexible inseason management provisions). The state management agencies that participated in the consultations described in this document were: California Department of Fish and Wildlife (CDFW), Oregon Department of Fish and Wildlife (ODFW) and Washington Department of Fish and Wildlife (WDFW).

Management of the salmon fisheries is generally divided into two geographic areas: North of Cape Falcon (U.S./Canada border to Cape Falcon, OR) and south of Cape Falcon (Cape Falcon, OR, to the U.S./Mexico border). The inseason actions reported in this document affect fisheries north and south of Cape Falcon. Within the south of Cape Falcon area, the Klamath Management Zone (KMZ) extends from Humbug Mountain, OR, to Humboldt South Jetty, CA, and is divided at the Oregon/California border into the Oregon KMZ to the north and California KMZ to the south. All times mentioned refer to Pacific daylight time.

Description of action: Inseason action #16 adjusted the daily bag limit in the recreational salmon fishery from the U.S./Canada border to Queets River, WA (Neah Bay and La Push Subareas), to limit retention of Chinook salmon, which had been two per day, to one per day. The new bag limit under inseason action #16 was: Two salmon per day, only one of which can be a Chinook salmon, plus two additional pink salmon.

Effective dates: Inseason action #16 took effect on July 24, 2015, and remained in effect until the part of the action that affected the Neah Bay Subarea was superseded by inseason action #18, which took effect on August 2, 2015.

Reason and authorization for the action: The Regional Administrator (RA) considered fishery effort and Chinook salmon landings to date, and determined that it was necessary to reduce the daily bag limit for Chinook salmon to avoid exceeding the harvest guidelines set preseason for the Neah Bay and La Push Subareas. Inseason action to modify recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

Consultation date and participants: Consultation on inseason action #16 occurred on July 21, 2015. Participants in this consultation were staff from NMFS, Council, WDFW, and ODFW.

Description of action: Inseason action #17 adjusted the summer quota (July through September) for the treaty Indian salmon fishery north of Cape Falcon, that was set preseason at 30,000 Chinook salmon, to 29,084 Chinook salmon.

Effective dates: Inseason action #17 took effect on July 1, 2015, and remains in effect until the end of the 2015 treaty Indian salmon season.

Reason and authorization for the action: The tribal fisheries reported an overage of 916 Chinook salmon in the May/June fishery. The Council's Salmon Technical Team (STT) determined that no impact-neutral adjustment was required, and that the spring overage could be deducted from the summer quota on a 1 to 1 basis. Modification of quotas and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: The treaty tribes notified staff from NMFS, Council, and WDFW of the need for modification of the summer quota on July 22, 2015, and consulted with the STT on the need for any adjustments needed to make the modification impact-neutral. The RA concurred with the quota modification.

Description of action: Inseason action #18 adjusted the daily bag limit in the recreational salmon fishery from the U.S./Canada border to Cape Alava (Neah Bay Subarea) to prohibit retention of Chinook salmon. This action superseded that part of inseason action #16 that applied to the Neah Bay Subarea.

Effective dates: Inseason action #18 took effect August 2, 2015, and remains in effect until the end of the salmon fishing season or until modified by further inseason action.

Reason and authorization for the action: The RA considered Chinook salmon landings and effort in the recreational salmon fishery north of Cape Falcon and determined that the Neah Bay Subarea was likely to exceed the subarea guideline if retention of Chinook salmon continued. Prohibiting retention of Chinook salmon in this subarea allowed fishers access to remaining coho quota without exceeding the Chinook salmon guideline. Inseason action to modify recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

Consultation date and participants: Consultation on inseason action #18 occurred on July 28, 2015. Participants in this consultation were staff from NMFS, Council, WDFW, and ODFW.

Description of action: Inseason action #19 adjusted the summer quota (June through September) for the recreational salmon fishery north of Cape Falcon. Unutilized quota from the spring season was rolled over on an impact-neutral basis to the summer season. The adjusted summer quota is 56,700 Chinook salmon.

Effective dates: Inseason action #19 took effect on July 28, 2015, and remains in effect until the end of the 2015 recreational salmon season.

Reason and authorization for the action: The spring recreational salmon fishing season north of Cape Falcon closed on June 12, 2015. Once landings were finalized, 8,798 Chinook salmon remained unutilized from the spring mark-selective Chinook salmon quota of 10,000. The STT calculated the quota rollover to the non-mark-selective Chinook salmon summer quota on an impact-neutral basis for Puget Sound Puyallup and Nisqually Chinook salmon stocks. This resulted in a net, impact-neutral rollover of 2,700 non-mark-selective Chinook salmon quota to the summer fishery. Modification of quotas and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #19 occurred on July 28, 2015. Participants in this consultation were staff from NMFS, Council, WDFW, and ODFW.

Description of action: Inseason action #20 changed the landing and possession limit for retention of Pacific halibut caught incidental to the commercial salmon fishery from 12 halibut per trip to 2 halibut per trip. This action applies to the commercial salmon fishery from the U.S./Canada border to the U.S./Mexico border.

Effective dates: Inseason action #20 took effect on August 7, 2015, and remains in effect until the end of the commercial salmon fishing season or until modified by further inseason action.

Reason and authorization for the action: The RA considered landings of halibut caught incidental to the commercial salmon fishery and determined that the allocation of halibut set by the International Pacific Halibut Commission was close to attainment. Inseason action #20 was taken to allow access to the remaining halibut allocation without exceeding the allocation. Inseason modification of limited retention regulations is authorized by 50 CFR 660.409(b)(1)(ii).

Consultation date and participants: Consultation on inseason action #20 occurred on August 5, 2015. Participants in this consultation were staff from NMFS, Council, CDFW, WDFW, and ODFW.

Description of action: Inseason action #21 adjusted the August quota for the commercial salmon fishery in the Oregon KMZ. Unutilized quota from July was rolled over on an impact-neutral basis to August. The adjusted August quota is 772 Chinook salmon.

Effective dates: Inseason action #21 took effect August 1, 2015, and remains in effect to the end of the season.

Reason and authorization for the action: Under inseason action #14 (80 FR 43336, July 22, 2015), the commercial salmon fishery in the Oregon KMZ had an adjusted July quota of 1,184 Chinook salmon. The State of Oregon reported that 813 Chinook salmon were landed in the area in July, leaving quota of 371 Chinook salmon unutilized. To address temporal differences in impacts to Klamath River fall and California coastal Chinook salmon stocks, the STT calculated the impact-neutral rollover of 371 Chinook salmon from July to August. As a result, 272 Chinook salmon were added to the August quota of 500 Chinook salmon, for an adjusted quota of 772 Chinook salmon. After consideration of Chinook salmon landings to date and the STT's calculations, the RA determined that it was appropriate to adjust the August quota for the commercial salmon fishery in the Oregon KMZ. This action was taken to allow access to available Chinook salmon quota, without exceeding conservation impacts to Klamath River fall and California coastal Chinook salmon stocks. Inseason action to modify quotas and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

Consultation date and participants: Consultation on inseason action #21 occurred on August 5, 2015. Participants in this consultation were staff from NMFS, Council, CDFW, WDFW, and ODFW.

All other restrictions and regulations remain in effect as announced for the 2015 ocean salmon fisheries and 2016 salmon fisheries opening prior to May 1, 2016 (80 FR 25611, May 5, 2015).

The RA determined that the best available information indicated that Chinook salmon and halibut catch to date and fishery effort supported the above inseason actions recommended by the states of Washington and Oregon, and the treaty Indian tribes. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with these Federal actions; the tribes manage fisheries in areas described in the annual management measures (80 FR 25611, May 5, 2015). As provided by the inseason notice procedures of 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the time the action was effective, by telephone hotline numbers 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of the regulatory actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (80 FR 25611, May 5, 2015), the West Coast Salmon Fishery Management Plan (Salmon FMP), and regulations implementing the Salmon FMP, 50 CFR 660.409 and 660.411. Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time Chinook salmon catch and effort assessments and projections were developed and fisheries impacts were calculated, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best available scientific information, ensuring that conservation objectives and ESA consultation standards are not exceeded. The AA also finds good cause to waive the 30-day delay in effectiveness required under 5 U.S.C. 553(d)(3), as a delay in effectiveness of these actions would allow fishing at levels inconsistent with the goals of the Salmon FMP and the current management measures.

These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866.

In 2002, the Council recommended establishing, and NMFS implemented, the LVPA around Swain's, Tutuila, and the Manua Islands, and Rose Atoll. At the time, the Council and NMFS established the LVPA to prevent the potential for gear conflicts and catch competition between large and small fishing vessels. Such conflicts and competition could have led to reduced opportunities for sustained participation in the small-scale pelagic fisheries. The LVPA, which extends seaward approximately 30-50 nm offshore from the islands, restricts vessels 50 ft and longer from fishing for pelagic management unit species. You may read more about the establishment of the LVPA in the 2001 proposed rule (66 FR 39475, July 31, 2001) and 2002 final rule (67 FR 4369, January 30, 2002).

The American Samoa pelagic fisheries have changed since 2002, and the conditions that led the Council and NMFS to establish the LVPA are no longer present. Only a few small longline vessels (just one active in 2014) have been operating on a regular basis, and the large vessels (19 active in 2014) have faced declining catch per unit of effort (CPUE), increased costs, and greatly reduced revenues. The LVPA may be unnecessarily reducing the efficiency of the larger American Samoa longline vessels by displacing the fleet from a part of their historical fishing grounds.

To address fishery conditions resulting from the LVPA, the Council recommended that NMFS allow federally-permitted U.S. longline vessels 50 ft and longer to fish in portions of the LVPA. Specifically, the proposed action would allow large U.S. vessels that hold a Federal American Samoa longline limited entry permit to fish within the LVPA seaward of 12 nm around Swains Island, Tutuila, and the Manua Islands (see Fig. 1). NMFS would continue to prohibit fishing in the LVPA by large purse seine vessels. The fishing requirements for the Rose Atoll Marine National Monument would also remain unchanged.